Mercado (Migration)

[2022] AATA 2943

Mercado (Migration) [2022] AATA 2943 (12 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Marl Steven Arago Mercado

REPRESENTATIVE:  Mr Daniels Obiokolie (MARN: 1465945)

CASE NUMBER:  1827630

HOME AFFAIRS REFERENCE(S):          BCC2018/3979356

MEMBER:Penelope Hunter

DATE:12 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a 482 – Temporary Skill Shortage visa:

·cl 482.312 of Schedule 2 to the Regulations.

Statement made on 12 July 2022 at 12:11pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Provisional) (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – member of the family unit – de facto partner – marriage after the visa application – statutory declarations in support – pooled financial resources – joint travel and family visits – plans to commence a family – household shared with wider family – decision under review remitted       

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 482.312; rr 1.03, 1.09, 1.12, 1.15

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 GK – Temporary Skill Shortage (Class GK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 June 2018. The delegate refused to grant the visa on 30 August 2018 on the basis that the applicant did not satisfy the requirements of cl 482.312 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 482.312 of Schedule 2 relevantly requires the applicant to be a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa at the time of decision.

3. The applicant appeared before the Tribunal on 13 April 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Cherry Julie Jane Caperida and Ms Marvilyn Grace Arago Mercado.

4. The applicant was represented in relation to the review, although his representative did not attend the hearing.

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

   Consideration of claims and evidence

6. In this matter, the applicant is claiming to be the spouse of the family head and primary visa applicant Ms Cherry Julie Jane Caperida.

7. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Regulations. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

8. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

   ·the spouse or de facto partner of the family head;

   ·a child or step-child of the family head or their spouse or de facto partner who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated for work due to loss of bodily or mental functions;

   ·a dependent child of a dependent child of the family head or of their spouse or de facto partner (grandchild).

9. A person is a ‘de facto partner’ if they are in a ‘de facto relationship’ with the family head. ‘De facto partner’ is defined by s 5CB the Act, which provides that: the couple must not be married to each other or related by family; the couple must have a mutual commitment to a shared life to the exclusion of all others; their relationship is genuine and continuing, and that the couple live together or do not live separately and apart on a permanent basis.

10. When considering whether the above requirements in s 5CB are satisfied and the applicant is the de facto partner of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.09A of the Regulations. These circumstances are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.

11. When the visa application was lodged the applicant was claiming to be in a de facto relationship with Ms Caperida. At the Tribunal hearing the applicant presented to the Tribunal a marriage certificate setting out that the applicant and Ms Caperida had subsequently married on 14 April 2019. The applicant is now claiming to be the spouse of Ms Caperida.

12. A person is a ‘spouse’ if they are in a ‘married relationship’ with the family head. ‘Spouse’ is defined by s 5F of the Act, which provides that: the couple must be married to each other in a marriage that is valid under the Migration Act; the couple must have a mutual commitment to a shared life as a married couple to the exclusion of all others; their relationship is genuine and continuing, and the couple live together or do not live separately and apart on a permanent basis. The definition applies to same sex and different sex couples.

13. When considering whether the above requirements in s 5F are satisfied and the applicant is the spouse of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.15A of the Regulations. These circumstances are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.

    Background

14. The applicant and Ms Caperida are citizens of the Philippines. The applicant is aged 29 and first arrived in Australia as a dependent family member of his father, who was the holder of a Subclass 457 visa, in July 2008.

15. Ms Caperida is aged 29 years. At the time of the visa application under review she was the holder of a Subclass 457 visa. At the time of the Tribunal hearing Ms Caperida was the holder of a bridging visa. She told the Tribunal that she had applied for a Subclass 482 visa and this was currently being processed by the Department. The Tribunal agreed to delay a determination in the matter to allow further time for the processing of this application. On 27 May 2022, the Tribunal was provided with evidence of the grant of a Subclass 482 visa to Ms Caperida valid until 26 April 2026. The Tribunal is therefore satisfied that, at the time of this decision, Ms Caperida, having satisfied the primary criteria is the holder of a Subclass 482 visa.

16. Before the Department the applicant had submitted evidence of his relationship with Ms Caperida in the form of energy bills, car registration payments, ANZ Bank statements, Commonwealth Bank statements, a PAYG summary for the applicant, a residential tenancy agreement, BUPA health insurance statement, medical invoices, photographs, and statements from the applicant’s mother and sister and a friend, Ms Ivy Candilado.

17. In assessing the application, the delegate in their decision record, a copy of which the applicant has submitted to the Tribunal, was not satisfied that the applicant had demonstrated that he was the de facto partner of Ms Caperida for the purposes of the Act. Particularly, it was noted that the joint Commonwealth Bank account was only opened approximately two weeks after the visa application had been lodged. Additionally, the residential tenancy agreement appeared to have commenced on 23 June 2017, between Ms Caperida and the applicant’s father. The applicant appeared to have been added to the agreement after that date, it was noted that his signature was not witnessed and the delegate had concerns about the authenticity of the document. It was also noted that Department records had Ms Caperida living at a different address to that claimed in the visa application. Finally, the delegate noted that the applicant was previously listed as a dependent child on his father’s 457 visa application which ceased and his father had progressed to a Subclass 482 visa which did not include the applicant. A further 187 visa application by his father which attempted to include the applicant was subsequently refused. This raised concerns for the delegate that the applicant was attempting to secure a positive migration outcome.

18. Upon review, the Tribunal has had the benefit of the oral evidence of the applicant and Ms Caperida, in addition to that of their witness, Ms Marvilyn Mercado who is also a member of their household. The applicant has submitted additional information in support of his claim to be a member of the family unit of Ms Caperida, including the following:

    ·Statement of the applicant.

    ·Statement of Ms Caperida.

    ·Certificate of Marriage of the applicant and Ms Caperida, dated 14 April 2019.

    ·Letter of support of friend, Noemi Santos dated 6 April 2022.

    ·Statutory declaration of friend, Anne Margaret Bulilan Renojo, sworn 10 April 2022.

    ·Statutory declaration of friend, Michelle Farjardo, sworn 10 April 2022.

    ·Statutory declaration of friend, Emerson Tagijiam, sworn 2022.

    ·Commonwealth Bank statements for the joint account of the applicant and Ms Caperida from 10 July 2018 to 31 December 2018, 1 July 2020 to 31 December 2021.

    ·Confirmation of BUPA health insurance dated 11 March 2022 in the names of the applicant and Ms Caperida.

    ·Patient registration form for Ms Caperida dated 4 January 2019, in which she lists the applicant as her partner and next of kin.

    ·Copy of 482 visa application lodged by Ms Caperida in which she sets out that she is married.

19. The Tribunal also received oral evidence from the applicant and Ms Caperida. During the hearing the applicant delivered his evidence without hesitation as did Ms Caperida, and there appeared to the Tribunal no reasons to doubt that the evidence was truthful or reliable. It was further corroborated where appropriate by Ms Marvilyn Mercado. The Tribunal received evidence as to how the applicant and Ms Caperida began a relationship, their living and household arrangements, the nature of their ongoing relationship and their decision to subsequently marry.

20. The Tribunal is satisfied, on the basis of the marriage certificate submitted and oral evidence of the applicant, Ms Caperida and Ms Mercado that since 14 April 2019, they are married to each other and that this marriage, registered in Australia, is valid for the purposes of the Act.

    Mutual commitment to a shared life

21. The applicant and Ms Caperida confirmed that they had commenced a relationship in late 2016, after communicating for a while through social media. Ms Caperida was known to the applicant’s father through his church. In 2017, they moved in together, and at that time the applicant was living with his father at an address in Wilmot. Later that year, the applicant’s mother and sister relocated to Sydney from Brisbane and a decision was made to lease larger premises to accommodate everyone at Woodcroft. Ms Caperida corroborated this evidence and that they had been living together for at least 12 months prior to the visa application.

22. As to the concerns of the delegate that she was listed with the Department as residing at a different address, Ms Caperida told the Tribunal that she had not updated the Department as to her address when she moved in with the applicant and his father to the premises at Wilmot. All communication at that time with the Department was through her agent and she did not think to update her address.

23. Regarding his previous migration applications and the timing of the application under review proximate to his refusal as a dependant on his father’s visa, the applicant told the Tribunal that he understood that the timing would raise some questions but his relationship with Ms Caperida had developed independent of any visa issues. He said that he was not familiar with Australia’s migration laws and had relied on family members and their agents to guide him. He conceded that he should have paid more attention to such matters.

24. The applicant claimed that it had always been his intention to marry Ms Caperida and it had been discussed prior to the visa application. The Tribunal notes in the statements that the applicant and Ms Caperida provided to the Tribunal with the review application in September 2018, they both discussed their intention to marry. They married in Nurragingy Reserve, Blacktown. Their wedding was attended by approximately 50 to 60 of their close friends and relatives, and followed by a reception at Richmond.

25. They have continued to reside together while awaiting review, although due to their financial circumstances this has always been in a shared household. In the past couple of years Ms Caperida has demonstrated her commitment to the relationship by supporting the applicant completely financially and at times providing assistance to his family.

26. The applicant and Ms Caperida provided to the Tribunal evidence of joint travel, such as to Canberra, Brisbane and camping trips to the Blue Mountains. One of their more recent trips was to visit Ms Caperida’s brother in Tasmania. They had hoped to visit Ms Caperida’s family in the Philippines but while awaiting review they were unsure of the applicant’s ability to depart Australia. Ms Caperida’s mother has however visited them in Australia and was present for their wedding in April 2019. Their upcoming camping trip to the Blue Mountains is to celebrate their anniversary, last year they had a small household gathering to celebrate as things were impacted by COVID-19 restrictions.

27. They both spoke to the Tribunal about their hopes in the future to start a family. They would like for the applicant to have employment and to build up some small savings before they take this step. The applicant has spent time while awaiting review studying in the area of cyber security and is interested in pursuing employment in this field. Ms Caperida has been supportive of his studies.

28. The applicant and Ms Caperida provided to the Tribunal realistic details of their plans and hopes for a future together, which they intend to include children. The Tribunal is satisfied that the commitment the parties have to their relationship is indicative of the parties being in a mutually exclusive relationship and their relationship being genuine and continuing.

    Household

29. The applicant and Ms Caperida have never lived alone as a couple. Initially they moved in with the applicant’s father, then the household came to include the applicant’s mother and sister. They subsequently moved to Quakers Hill and then to Prospect, where they currently reside. The applicant’s parents were not living with them the entire time, in the interim they had relocated for several years to Darwin. The applicant’s sister in the meantime has continued to reside with them. Recently due to problems with his eye, his father could not continue his employment. His parents returned to NSW and came to stay with him and Ms Caperida for a period while he sought medical treatment. Due to travel and border restrictions arising from the COVID-19 pandemic they have remained part of their household for several months. His parents have recently discussed returning to the Philippines in early 2023. It is not intended that they indefinitely remain a part of their household.

30. The lease for the premises they rented at Woodcroft was initially only in the name of Ms Caperida and the applicant’s father, as the applicant was not employed at the time the agreement was entered into. The landlord had not required the applicant or the other members of the household to be a party to the lease. The applicant told the Tribunal that he recalled attending the offices of the real estate agent when his name was added to the lease. Ms Caperida confirmed that the landlord and agent were aware that the applicant was an occupant of the premises at the time the lease was entered into, although he was only added to the agreement with their consent proximate to the time that the visa application was lodged.

31. In their current home the applicant and Ms Caperida share a bedroom and ensuite, all other living areas in the premises are shared. His parents and sister contribute to the rent and Ms Caperida makes up their proportion of the rent. The gas and electricity expenses for the household are also met from the joint account of the applicant and Ms Caperida. As he is not working the applicant attends to most of the household cooking and cleaning. From time to time Ms Caperida told the Tribunal that she would have to delegate chores to the applicant and this was at times an area of friction in their relationship. Ms Caperida considered that the applicant was a good husband and although he could not provide financial support, he keeps the house in order while she works. The applicant took steps to ensure that there was a meal available for her when she returned home from work. Sometimes when she did late shifts or overnight shifts in her role as a residential care worker, he would drive her to and from work as she would be tired and to ensure she was safe.

32. Ms Mercado told the Tribunal that all the time that she had been living with the applicant and Ms Caperida that they interacted as a couple. They would plan outings together to the exclusion of other members of the household, they would also sometimes make their own arrangements for food.

33. The information provided as to the nature of the household is supportive of a finding that the parties live together, are in an exclusive relationship and the relationship is genuine and continuing.

    Financial aspects

34. It is accepted that the applicant and Ms Caperida share a joint bank account. The Tribunal notes the delegate’s concern that the account had been opened 10 days before the lodgement of the visa application and whether it was a genuine account. In response to this concern the applicant conceded that prior to lodging the visa application they had not had a joint account, the joint account had been opened on the direction of their agent to assist the visa application. Previously they had operated separate accounts and just transferred money between them where necessary to meet expenses. However, since the visa refusal, the applicant has been without work rights. The statements provided to the Tribunal corroborate the evidence submitted to the Tribunal that Ms Caperida’s wages are paid directly into this account and that both parties access the fund to pay for their day to day living expenses. The applicant’s access to this account is unrestricted.

35. As the applicant has been unable to work since 2019, they have not acquired any significant assets. The applicant still has the same car that he owned prior to the visa application. Ms Caperida attends to the running expenses of this vehicle. Ms Caperida has also financially supported study currently being undertaken by the applicant, with the view that his potential future employment in the field of IT and cyber security will provide him with a potentially lucrative career, and a stable financial resource for them as a couple in the future.

36. Ms Mercado gave evidence to the Tribunal that she was aware that the applicant and Ms Caperida pooled their money. They share a bank account and make a financial contribution to anything associated with the household as a couple not as individuals. The applicant’s parents do not provide them with financial support other than a proportionate contribution to the rent. They are not in a position to support the applicant given their health problems and lack of employment. If anything Ms Caperida also extends her support to them.

1. The applicant and Ms Caperida provided consistent evidence to the Tribunal as to how they managed their finances, their payment of daily expenses and their future planning. They also hold joint health insurance.

2. The information and evidence provided as to the financial aspects of the relationship, and Ms Caperida’s commitment to exclusively supporting the applicant financially, is indicative of the finding that the parties are in a genuine relationship.

   Social aspects

3. The applicant and Ms Caperida have travelled together. They further provided evidence that they attend church regularly and are known at church as a married couple. This was corroborated by Ms Mercado. They are known to both their families as a married couple, their respective parents and siblings attended their wedding. Statements have also been provided by several of their friends such as Ms Fajardo and Ms Renojo.

4. The applicant is known to Ms Caperida’s work colleagues as her husband and socialises with them on occasions. Since the visa refusal, Ms Caperida has progressed to a Subclass 482 visa, and has recently had her second Subclass 482 visa approved. On the advice of their agent they did not include the applicant in the visa applications as he was on a bridging visa, although Ms Caperida did disclose that she was married and has submitted to the Tribunal a copy of her most recent visa application confirming this evidence.

5. Based on the material before it, the Tribunal accepts that the parties represent themselves to other people, including Ms Caperida’s employer and work colleagues, their family and friends as being a couple.

   Assessment of relationship

6. The Tribunal has considered all the information before it both individually and cumulatively. When considered together, the Tribunal is satisfied that the weight of evidence supports a finding that the parties have a mutual commitment to a shared life to the exclusion of all others. The Tribunal has considered in particular the matters of concern for the delegate and accepts that at the time of application their evidence was fairly fresh, however the Tribunal has the benefit of examining the relationship several years on and the fact that they have lived together as a couple in several households, established financial dependence, married and continued social activities as a couple supports a finding by the Tribunal that they have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied that the relationship is genuine and continuing, and that they live together on a permanent and indefinite basis.

7. Accordingly, the applicant is the spouse of the family head, and cl 482.312 is met.

8. The Tribunal therefore remits the matter back to the Department for the consideration of the remaining visa criteria in respect of the applicant.

   decision

9. The Tribunal remits the application for a GK – Temporary Skill Shortage (Class GK) visa for reconsideration, with the direction that the applicant meets the following criteria for a 482 – Temporary Skill Shortage visa:

   ·cl 482.312 of Scheduled 2 to the Regulations.

   Penelope Hunter
   Member

   ATTACHMENT

   1.12     Member of the family unit

   (1)This regulation has effect for the purposes of the definition of member of the family unit in subsection 5(1) of the Act.

   General rule

   (2)A person is a member of the family unit of another person (the family head) if the person is:

   (a)     a spouse or de facto partner of the family head; or

   (b)     a child or step-child of the family head or of a spouse or de facto partner of the family head (other than a child or step-child who is engaged to be married or has a spouse or de factor partner) and:

   (i)has not turned 18; or

   (ii)has turned 18, but has not turned 23 and is dependent on the family head or on the spouse or de facto partner of the family head; or

   (iii)has turned 23 and is under paragraph 1.05A(1)(b) dependent on the family head or on the spouse or de facto partner of the family head; or

   (c)      is a dependent child of a person who meets the conditions in (b).

   This subregulation has effect subject to the later subregulations of this regulation.

   …