Maranon (Migration)

[2021] AATA 2818

Maranon (Migration) [2021] AATA 2818 (2 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rosemarie Mallorca Maranon

CASE NUMBER:  1918762

HOME AFFAIRS REFERENCE(S):          BCC2018/2036912

MEMBER:Steven Griffiths

DATE:2 July 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2) of Schedule 2 to the Regulations; and

·cl 820.221(1) of Schedule 2 to the Regulations; and

·reg 2.03A

Statement made on 02 July 2021 at 10:31am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – applicant had been in the de facto relationship for at least the 12-month period – genuine relationship – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5CB, 65
Migration Regulations 1994, rr 1.09, 1.15A, 2.03A; Schedule 2, cls 211, 820.221

CASES

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Ms. Rosemarie Mallorca Maranon, applied for the visa on 10 May 2018 on the basis of her relationship with her sponsor, Mr. Terry Wayne Howard. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2) as the delegate determined the de facto relationship of the parties had not been in place for 12 months prior to the lodgement of the visa application.

4. The parties were assisted by their registered migration agent, Mr. Richard Wyndham, of ProVisa Australia.

5. The visa applicant appeared before the Tribunal on 1 July 2021 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor and a long-term friend of the sponsor, with the migration agent taking part by Microsoft Teams video.

6. A daughter of the applicant had been scheduled to provide oral evidence, by telephone from the Philippines, and while initial contact was made with her, subsequent attempts to contact her were not successful and the Tribunal confirmed it did not require her evidence.    

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file, the Tribunal file including additional information provided by the applicants prior to the hearing and the oral evidence of the hearing.

   ISSUE

9. The issue in the present case is whether the applicant is the de facto partner, as defined in s.5CB of the Act, of the sponsor.

   BACKGOUND OF THE EVIDENCE

10. Ms. Maranon was born in the Philippines in 1969. Her parents are deceased, and she has 3 sisters and brother, born 1960, 1963, 1966 & 1970, living in the Philippines. She married in 1988 and separated from her husband in 2012, and she has 2 sons and 2 daughters, born 1989, 1991 & 2002, living in the Philippines. She was granted a Visitor 600 Visa on 21/4/17 and to cease 9/8/17 and arrived in Australia on 12/5/17. A further Visitor Visa was granted 9/8/17 to cease 12/5/18 and she has been on a WA-010 Bridging Visa from 11/5/18. Her son born 2002 is not seeking to migrate with her.

11. Mr. Howard was born in Australia in 1956. His parents are deceased, and he has 2 brothers and 2 sisters, born 1951, 1953, 1957 & 1960, all living in Australia.

    INFORMATION TO THE TRIBUNAL

12. Since the Department made a decision, the parties have provided further information to the Tribunal including:-

    Sponsor Last Will & Testament, dated 18/11/20

    Sponsor Enduring Power of Attorney to applicant, 18/11/20

    Applicant Movement Record, 25/5/21

    Sponsor Movement Record, 25/5/21

    12 photos of the parties from 2015 & 2016 trips by the sponsor to be with applicant and her family

    6 photos of the parties from 2017 in Australia with family and friends

    Applicant proof of address documents, July 2020

    Applicant superannuation statement (not dated), with binding beneficiary nomination split between sponsor and youngest child of applicant.

    Applicant sole name bank account, May 2021 (balance $ 8734.09)

    Money transfers from a sponsor to applicant - $ 900 on 24/4/17

    Form 888 Statutory Declaration, Ms. Charie Porras, daughter of applicant, 22/6/21

    Parties joint name utility bills, February 2021 & May 2021

    Parties, with friends, travel documents to Kangaroo Island, April 2021

    Applicant Statutory Declaration, 23/6/21

    Sponsor Statutory Declaration, 23/6/21

    Migration Agent submission, 24/6/21

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

13. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian Permanent Resident or an eligible New Zealand citizen. The Tribunal accepts the sponsor being an Australian Citizen by birth.        

    Are the parties in a de facto relationship?

14. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

15. In forming an opinion whether they are in a de facto relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the other requirements for a de facto relationship met?

16. The Tribunal has considered the evidence relevant to the matters in r.1.15A. The Tribunal took into account the available documentary evidence contained on the Department’s file and the Tribunal’s file and evidence provided to the Tribunal.

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (i)any joint ownership of real estate or other major assets; and

    (ii)any joint liabilities; and

    (iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)the basis of any sharing of day‑to‑day household expense

17. The Tribunal determines from the documented and oral evidence of the parties that at the time of the visa application and this decision no real estate or other major assets was or is jointly owned by the parties.

18. The Tribunal determines from the documented and oral evidence of the parties that at the time of the visa application and this decision the parties did not and do not have any joint liabilities.

19. The Tribunal accepts the documented and oral evidence of the parties that the sponsor is a self-employed delivery operator.

20. The Tribunal accepts the documented and oral evidence of the parties that the applicant is a night shift supervisor for a cleaning firm and works in the Adelaide central business district.

21. The Tribunal accepts the oral evidence of the parties that their home has been owned by the sponsor for approximately 30 years and is in his name solely.

22. The Tribunal accepts the documented, mobile phone banking and oral evidence of the parties that the sponsor uses his sole name bank account for the expenses associated with the home of the parties, as these arrangements have been in place for a considerable time before the relationship of the parties, and determines this to represent, at the time of the visa application and this decision, the pooling of financial resources especially in relation to major financial commitments. 

23. The Tribunal accepts the documented, mobile phone banking and oral evidence of the parties of the joint name and individual name bank accounts they operate, with the incomes of the parties deposited in to the sole name accounts from which they make transfers to the joint name account, with this account used for the payment of the majority of the regular expenses, and determines, at the time of the visa application and this decision, to represent the sharing of day-to-day household costs.  

24. The Tribunal accepts the oral evidence of the parties that the sponsor has sole ownership of 3 vehicles, one being a truck for his business, and the other 2 being low valued cars and while the applicant has a learners drivers licence only they were not able to include her as a joint owner when the last vehicle was purchased.

25. The Tribunal determines from the documented and oral evidence of the applicant that at the time of the visa application none of the parties had a legal obligation to the other.

26. The Tribunal accepts the oral evidence of the parties that the sponsor paid for all costs of their accommodation together in Hong Kong and the Philippines during their time together in 2015 and 2016, with the sponsor paying for the flight costs of the applicant to come to Australia in May 2017 and determines this to represent, at the time of the visa application, the pooling of financial resources.

27. The Tribunal accepts the documented and oral evidence of the parties that the joint name bank account was used to pay for their holiday on Kangaroo Island in April 2021 and determines this to represent at the time of decision the pooling of financial resources.

28. The Tribunal accepts the oral evidence of the parties that the money transfers made by the applicant to her youngest child for the first two years of her life in Australia, to provide for his living and education expenses, being from May 2017 to May 2019, were funded by the sponsor with the money provided in cash by the sponsor to the applicant and the applicant then arranged the money transfer while the sponsor was at work, and determines this to represent the pooling of financial resources.  

29. The Tribunal accepts the oral documented and oral evidence of the applicant that the sponsor paid for all costs associated with the lodgement of the partner visa application and determines this to represent the pooling of financial resources.

    Nature of the household aspects that must be considered include:-

    (i)any joint responsibility for the care and support of children; and

    (ii)the living arrangements of the persons; and

    (iii)any sharing of the responsibility for housework

30. The Tribunal accepts the documented, photographic and oral evidence of the parties that the applicant has four children, born between 1989 and 2002, and five grandchildren spread across three of her now adult children, with all living in the Philippines.

31. The Tribunal accepts the documented and oral evidence of the parties that the sponsor does not have children.  

32. The Tribunal accepts the documented, photographic and oral evidence of the parties that for the trip made by the sponsor in 2015 and 2016 to Hong Kong and the Philippines for 7 and 16 days respectively, the parties lived together.

33. The Tribunal accepts the documented, photographic and oral evidence of the parties that for much of the time spent by them together in the Philippines in 2016, they were living with family members of the applicant.

34. The Tribunal accepts the documented, photographic and oral evidence of the parties that they have lived together in the home of the sponsor from 12/5/17.

35. The Tribunal accepts the documented and oral evidence of the parties of the roles undertaken by the applicant and sponsor while living together and determines, at the time of the visa application and this decision, the parties share the responsibility for housework.  

    Social aspects of the relationship that must be considered include:-

    (i)whether the persons represent themselves to other people as being de facto partners to each other; and

    (ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)  any basis on which the persons plan and undertake joint social activities

36. The Tribunal accepts the documented, photographic and oral evidence of the parties and witness of the contact of the parties with family and friends and determines, at the time of application and this decision, the parties represent themselves to other people at all time as being de facto partners.   

37. The Tribunal accepts the documented and oral evidence of the parties that the applicant made her family aware of the contact by the sponsor, and the developing relationship, early in the relationship, and accepts that the second trip of the sponsor from Australia, being in 2016, to be with the applicant was to the Philippines so the sponsor could be introduced to the family of the applicant as the sponsor wanted to get to know the applicants family, and for them to know him, as a sign of the commitment the parties had to a long term relationship.

38. The Tribunal accepts the documented, photographic and oral evidence of the parties and witness that their families, and individual and collective friends, at the time of the visa application and this decision, are supportive of the de facto relationship. 

39. The Tribunal accepts the documented, photographic and oral evidence of the parties that the parties planned and undertaken joint social activities since the parties met physically in April 2015 and determines, at the time of the visa application and this decision, the parties have planned and undertaken joint social activities in the Philippines and Australia.

    Nature of the commitment to each other that must be considered include:-

    (i)the duration of the relationship; and

    (ii)the length of time during which the persons have lived together; and

    (iii)the degree of companionship and emotional support that the persons draw from each other; and

    (iv)whether the persons see the relationship as a long‑term one.

40. The Tribunal accepts the documented and oral evidence of the parties that they first made contact in July 2014 through a dating application, met physically in April 2015, developing the relationship through to spending time together in May 2016, with the sponsor asking the applicant to come to Australia to live with him and she arrived on 12 May 2017.

41. The Tribunal accepts the documented, photographic and oral evidence of the parties that they have lived together in Australia from 12 May 2017.  

42. The Tribunal accepts the documented and oral evidence of the parties of the support the parties have provided to each other, for example when the sponsor was recovering from knee surgery and was totally dependent on the support of the applicant, and determines, at the time of application and this decision, a high level of companionship and emotional support was provided by each of the parties to the other.

43. The Tribunal accepts the documented, photographic and oral evidence of the parties being committed to each other and determines, at the time of application and this decision, the parties have an ongoing commitment to each other and their relationship.  

    Any other circumstances of the relationship

44. The Tribunal accepts the documented and oral evidence of the applicant, who married in 1988 in the Philippines, and separated from her husband in 2012, remains legally married to him and the investigation of the parties indicates that a divorce is not able to take place legally and their only option is to seek an annulment, which is time consuming, costly and unlikely to be achieved or recognised.

45. The Tribunal accepts the oral evidence of the parties that they wish to marry, but cannot, with the sponsor stating that if the Tribunal could marry them they would do it today, and accepts that the parties will continue as de facto partners as this is their only option.

    Whether the parties are related by marriage

46. The Tribunal determines that the parties are not related by family. 

47. The Tribunal considered all the evidence on the circumstances of the parties that the evidence supports a finding that, at the time of the visa application and this decision, the parties have a mutual commitment to a shared life together as a couple to the exclusion of all others, with the relationship genuine and continuing and they live together.

48. On the basis of the above the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time the visa application was made and the time of this decision.

49. Therefore the applicant meets cl 820.211(2)(a) and cl 820.221(1)(a).

    Are the additional criteria for a de facto relationship met?

50. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

51. The applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

52. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12-month requirement. The Tribunal determines that the parties had been in a de facto relationship since May 2016 when the sponsor visited the applicant and her family in the Philippines. Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12-month period ending immediately before the date of the application.

53. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

54. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

55. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2) of Schedule 2 to the Regulations; and

    ·cl 820.221(1) of Schedule 2 to the Regulations; and

    ·reg 2.03A

    Steven Griffiths
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being in a de facto relationship with each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).