Miguel (Migration)

[2024] AATA 3888

Miguel (Migration) [2024] AATA 3888 (23 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Carmencita Miguel

CASE NUMBER:  2100727

HOME AFFAIRS REFERENCE(S):          BCC2020/661444

MEMBER:Ann Duffield

DATE:23 September 2024

PLACE OF DECISION:  Canberra

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 of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 23 September 2024 at 12:50pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – nature of the household is an indicator of a genuine and continuing relationship – parties consistently represent themselves to other people being married to each other – relationship between the review applicant and the sponsor was a genuine and continuing relationship – couple had a mutual commitment to a shared life to the exclusion of all others – decision under review remitted            

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, 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 applied for the visa on 3 March 2020 on the basis of her relationship with her sponsor. 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 because they were not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act.

4. The applicant appeared before the Tribunal on 6 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.

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

   BACKGROUND       

6. The applicant is a citizen of the Philippines born in May 1956 (68 years old).

7. She has declared a previous marriage which ceased upon the death of her husband in April 2010. She has a son born in November 1974 and a daughter born in October 1976. Her adult children reside in the Philippines.

8. The sponsor is an Australian citizen born in March 1945 (79 years old). He has declared a previous marriage from 1973 until 2013.

9. The parties met face-to-face on 15 June 2019 after first communicating on a dating website. The parties were married in Gladstone, Queensland on 2 November 2019.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant is the spouse of then sponsor within the meaning of the Migration Act.

    Whether the parties are in a spouse or de facto relationship

11. Clauses 820.211.211(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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

12. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in Australia on 28 November 2019. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

14. The Tribunal found the applicant’s evidence at the hearing to be spontaneous, detailed and compelling however the sponsor’s evidence was more taciturn. After agreeing to receive written submissions addressing the Tribunal’s concerns, the couple provided additional evidence and information after the hearing. Having considered all the evidence before it, the Tribunal is satisfied that the couple have a mutual commitment to a shared life together and their relationship is genuine and continuing and is remitting the decision for reconsideration.

15. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

16. The applicant arrived in Australia on a tourist visa and did not bring any financial resources with her. She helped her sister in Townsville look after her brother-in-law. The applicant has a bank account in Australia into which she deposits money given to her by the sponsor as she does not engage in paid work. The sponsor is on a pension and there is no other source of household income. The couple told the Tribunal that the applicant spends much of the day providing daily care to the sponsor including helping him dress and attend to his personal hygiene, as well as perform all the household duties and cooking. The sponsor has arthritis and is a diabetic.

17. The couple told the Tribunal that the house in which they live is half owned by the sponsor and half owned by his friend Denis.  They bought it together in around 2014 because the sponsor did not have the funds to purchase a house on his own. He and Denis have been friends of over 20 years.

18. There is no formal documentation setting out this arrangement. The sponsor is not required to pay Denis any money, but Denis can buy out his half of the house when he (the sponsor) passes away. The sponsor told the Tribunal that he anticipates that the applicant will receive half of that payment and his daughter the other half. He said that his half of the house was worth about $100,000 but it might be more as they have installed solar panels with money he received when his mother passed. The applicant provided the Tribunal with a copy of his will which formalises this agreement.

19. The parties’ evidence in relation to these matters was consistent and the Tribunal is satisfied that the financial aspects of the parties’ relationship supports a finding that they are in a genuine and continuing marriage.

20. The Tribunal has considered the social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

21. The parties told the Tribunal that they have an active social life with family and friends. Every Friday they host drinks and barbecue at their home, friends stay with them when they are passing through on caravan holidays into the north of Queensland and they also travel to Townsville regularly to see the applicant’s sister and brother-in-law. They present themselves to the community generally as a couple and this is supported by statements made by friends.

22. The couple have provided evidence to support this aspect of the relationship and their oral evidence was consistent. The Tribunal is satisfied that the social aspects of the relationship support a finding that they live together and have a mutual commitment to a shared life together.

23. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

24. Their house has four bedrooms, and they occupy one. Other rooms are used for guests and a home office/study. The applicant told the Tribunal that the sponsor has adult children but sadly one died in 2021 before she could meet her and the other daughter lives in Melbourne and she has met her several times.

25. The applicant is the primary carer for the sponsor and takes care of the running of the household, including shopping, cleaning, cooking, and providing daily care to the sponsor who has arthritis and is a diabetic. She ensures that he eats properly, takes his medication, and attends the GP regularly.

26. They entertain friends and family regularly and have frequent visitors staying with them. The couple’s evidence in this regard was consistent and supported by a close family friend who attended the hearing but provided a written submission afterwards. The Tribunal is satisfied that the nature of their household supports a finding that they live together and have a mutual commitment to a shared life together as husband and wife.

27. The Tribunal has considered the nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

28. The couple gave consistent evidence about their meeting and the development of their relationship. They met on a dating site which was suggested to them by the applicant’s sister. They first communicated on a dating website from around 2015/2016. After the applicant returned to the Philippines in 2018, the sponsor asked her to come back, and he proposed to her shortly after her arrival in 2019. They decided to marry on 2 November just prior to the cessation of the applicant’s visa. She said that she couldn’t afford to keep travelling back and forwards between Australia and the Philippines. The Tribunal accepts this was a valid reason for marrying quickly and makes no negative inference.

29. The sponsor was able to tell the Tribunal about the applicant’s prior marriage which was consistent with her evidence. He told the Tribunal that the applicant has not had any relationships since she and her ex-husband separated almost twenty years ago. She has worked to support her children who are now adults. The sponsor told the Tribunal that he believed that the applicant was looking for safety and security when they met on the website, and she had been reluctant to marry again because of her abusive ex-husband.  The applicant told the Tribunal that she felt safe with the sponsor and that they trusted each other.

30. The Tribunal put to the sponsor that it sounded as if he was looking for someone to care for him and asked what he thought distinguished a carer from a wife. The sponsor said that the applicant was both. He said that the applicant was a life partner in his eyes, and they loved each other. The applicant told the Tribunal that her life now felt purposeful.

31. The Tribunal is satisfied that the nature of the couple’s commitment to one another supports a finding that their marriage is genuine and continuing.

    CONCLUSION

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

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

34. 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

35. 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)(a) of Schedule 2 to the Regulations and

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

    Ann Duffield
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

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