Mendes Pitacas Marques (Migration)

[2021] AATA 3805

Mendes Pitacas Marques (Migration) [2021] AATA 3805 (6 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Maria Antonieta Mendes Pitacas Marques

CASE NUMBER:  1927921

HOME AFFAIRS REFERENCE(S): BCC2017/43005792 BCC2017/4305792

MEMBER:Steven Griffiths

DATE:6 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 06 July 2021 at 3:35pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – financial aspects – nature of the household – social aspects – nature of the commitment – registered relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 820.211, 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, Mrs. Maria Antonietta Mendes Pitacas Marques, applied for the visa on 16 November 2017 on the basis of her relationship with her sponsor, Mr. Jose Pinhao Marques. 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 parties have not proven that a de facto relationship existed. 

4. The parties were assisted by their registered migration agent, Mr. Richard Glazbrook, of DGA Consultants. 

5. The applicant appeared before the Tribunal on 6 July 2021 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sister-in-law of the parties. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages, with the migration agent taking part.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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

8. 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

9. Mrs. Marques was born in the Portugal in 1958. Her parents are deceased and she has a brother and sister, born 1957 & 1968, living in Portugal. She was previously married in 1988 with her husband dying in 2015. She was granted a Visitor 601 Visa on 23/12/15 and to cease 23/12/16, and arrived in Australia on 2/2/16. She departed 13/4/16 and was granted a further Visitor 601 Visa  on 5/9/17 and to cease 6/12/17 and arrived 6/9/17. She has been on a WA-010 Bridging Visa from 16/11/17. She has a son, born 1983, living in Mexico who is not seeking to migrate.

10. Mr. Marques was born in Spain in 1929. His parents are deceased. He arrived in Australia on 15 January 1955 and became an Australian citizen by grant in 1961. He was previously married from 1978 until 2005 when his wife died, with no children from the relationship.

    INFORMATION TO THE TRIBUNAL

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

    Migration Agent submission, 24/6/21

    Submission by Ms. Tanya Gerlach, sister-in-law of sponsor, 18/4/20

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

12. 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 grant from 1961.        

    Are the parties in a de facto relationship?

13. '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).

14. 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?

15. 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

16. 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.

17. 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.

18. The Tribunal accepts the documented and oral evidence of the parties that the sponsor is retired.

19. The Tribunal accepts the documented and oral evidence of the parties that the applicant does not work, with her income being from a pension she receives as a citizen of Portugal and for which the funds are deposited in to an account she has in her sole name in Portugal.

20. The Tribunal accepts the oral evidence of the parties that their home was purchased by the sponsor well prior to the commencement of the relationship and is in his name solely.

21. The Tribunal accepts the oral evidence of the parties that they have a joint name bank account, and investment and term deposited funds in joint names, with the funds in these accounts representing all the financial resources of the sponsor.

22. The Tribunal accepts the oral evidence of the parties that the financial situation of the applicant and her dead husband had been challenging for some years, with the long term health issues of the husband resulting in them living in a community owned home and with limited finances, and the sponsor had been providing financial support to the parties for approximately 20 years before the death of the husband, who was the half-brother of the sponsor.

23. The Tribunal accepts the oral evidence of the parties that the sponsor, through all of his funds being in joint names with the applicant now, accepted that total financial  responsibility for the parties living, utilities, health need and social costs comes from funds that were his, but are now theirs, 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 and the sharing of day-to-day household costs.   

24. The Tribunal accepts the oral evidence of the parties that the sponsor, prior to the joint account being created, paid for the visa application costs of the applicant and determines this to represent the pooling of financial resources.  

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 that the sponsor has paid for all air flights costs of the applicant for her 2 trips to Australia from Portugal and determines this to represent, at the time of the visa application, 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

27. The Tribunal accepts the documented and oral evidence of the parties that the applicant has a son, born in 1983, who is not seeking to migrate to Australia.  

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

29. The Tribunal accepts the documented, photographic and oral evidence of the parties that the sponsor stayed with the applicant and her husband regularly when he visited them in Portugal, and in particular for a period of 3 months prior to the death of his half-brother, the husband of the applicant, on 25/5/15.

30. The Tribunal accepts the oral evidence of the parties that as a couple in a de facto relationship the parties have lived together since the sponsor arrived in Portugal on 7/10/15 and at all times since, be it in Australia or Portugal.  

31. The Tribunal accepts the documented and oral evidence of the parties of the roles undertaken by the applicant and sponsor from 7/10/15 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

32. 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.

33. The Tribunal accepts the oral evidence provided by their sister-in-law, a resident of Australia, on the relationship and that the wider family all accept and support the relationship of the sponsor and applicant, noting that all see them as a committed couple who provide all the support the other requires.  

34. The Tribunal accepts the oral evidence of the parties that having known each other since 1988 when the applicant married the half-brother of the sponsor, they have met many times and with the long term ill health and subsequent death of the husband of the applicant, their relationship developed from the daily contact that occurred to one of wishing to be de facto partners.

35. The Tribunal accepts the documented and oral evidence of the parties that the sponsor is 91 years old and the applicant 63 and they are committed to each other and while the background to their knowledge of each other may be different to the majority of couples, they are in a committed, long term relationship.

36. 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. 

37. The Tribunal accepts the documented, photographic and oral evidence of the parties that the parties planned and undertook joint social activities since the de facto relationship began in October 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.

38. The Tribunal accepts the documented and oral evidence of the parties that their de facto relationship began in October 2015 and the parties have been together at all times since.

39. The Tribunal accepts the documented, photographic and oral evidence of the parties that they have lived together from 7/10/15, this being in Portugal until 2/2/16 when they travelled to Australia, travelling again to Portugal between 13/4/16 and 17/9/16 when they returned to Australia, and to Portugal again between 15/3/17 and returning to Australia on 6/9/17. 

40. The Tribunal accepts the documented evidence of the Relationship Certificate dated 10/11/17 under the South Australia Relationships Register Act 2016.

41. The Tribunal accepts the documented and oral evidence of the parties of the support the parties have provided to each other and determines, at the time of application and this decision, a high level of companionship and emotional support was and is provided by each of the parties to the other.

42. 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

43. The Tribunal accepts the documented evidence that the parties have known each other since 1988 when the applicant married the half-brother of the sponsor.

44. The Tribunal accepts the documented and oral evidence of the parties that the husband of the applicant died on 26/5/15.   

    Whether the parties are related by marriage

45. The Tribunal determines that the parties are related by marriage, as they are in-laws. 

46. 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.

47. 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.

48. 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?

49. 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 59 and 88 respectively.

50. 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.

51. The applicant has provided evidence that the relationship was registered under the South Australia Relationships Register Act 2016 on 10/11/17 as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: reg 2.03A(5).

52. The Tribunal notes this registration occurred 6 days before the visa application was lodged.

53. There is no evidence 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 have been in a de facto relationship since October 2015. 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.

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

55. 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

56. 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).