Millare (Migration)

[2019] AATA 3999

Millare (Migration) [2019] AATA 3999 (20 August 2019)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Erlinda Millare

CASE NUMBER:  1721641

DIBP REFERENCE(S):  BCC2015/1389072 BCC2017/3643459

MEMBER:Helena Claringbold

DATE OF DECISION:  20 August 2019

DATE CORRIGENDUM

SIGNED:2 September 2019

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

The words “The applicant was born in 1965 in Jovellar, Albay, Phillipines.” at paragraph 9 should be replaced with the words “The applicant was born in 1964 in Jovellar, Albay, Phillipines.”

Helena Claringbold
Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Erlinda Millare

CASE NUMBER:  1721641

HOME AFFAIRS REFERENCE(S):           BCC2015/1389072 BCC2017/3643459

MEMBER:  Helena Claringbold

DATE:  20 August 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 20 August 2019 at 2:09pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – relationship ceased – sponsorship withdrawn – applicant married to a person other than the sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), r 1.09A; Schedule 2, cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. On 13 May 2015, Ms Erlinda Millare (the applicant) applied for a Partner (Temporary) (Class UK) visa. The application was based on her de facto relationship with Mr Victor Jimenez, the sponsor.

2. On 4 February 2016, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The refusal was based on the applicant not meeting the criterion of Schedule 3001 of Schedule 3 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). As a result, the applicant did not meet cl.820.211(2)(d) of Schedule 2 to the Regulations.

3. On 20 February 2017, the Tribunal, differently constituted, made a finding that while the applicant did not meet the criterion of Schedule 3001, there were compelling reasons for not applying the Schedule 3 criteria. The Tribunal remitted the application to the Department of Immigration and Border Protection for reconsideration.

4. On 30 August 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the applicant and the sponsor are genuine de facto partners. Therefore, the applicant did not meet cl.820.211(2)(a) of Schedule 2 to the Regulations.

5. On 13 September 2017, the applicant applied to the Tribunal for review of the delegate’s decision. On 4 May 2018, the Tribunal received details of the applicant’s change of address. On 12 August 2019, the applicant provided the Tribunal with a copy of the delegate’s decision record. This is a review of the delegate’s decision.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration, individually and as a whole, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case files and the Tribunal’s case files.

   ISSUE

8. The issue in the present case is whether, the applicant and the sponsor are in a genuine and continuing de facto partner relationship, as defined in s.5CB of the Migration Act 1958 (the Act).

   BACKGROUND ON THE EVIDENCE

9. The applicant was born in 1965 in Jovellar, Albay, Philippines. Her parents are deceased. She has four siblings who live in the Philippines. She previously married Mr Alerio Millare. On 8 August 2010, Mr Millare and the applicant separated. There are three children from this relationship who live in the Philippines.

10. The sponsor was born in 1955 Chinandega, Nicaragua. On 2 June 1992, he was granted Australian citizenship. His parents and two siblings are deceased. On 23 December 1994, he married Ms Xiao Xian Deng, whom he sponsored to Australia. On 12 March 1998, Ms

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Deng and the sponsor divorced. There is one child from this relationship who lives in Australia. On 14 May 2007, the sponsor married Ms Chi Chen Yo, whom he sponsored to Australia. On 8 September 2012, Ms Yo and the sponsor divorced. There are no children from this relationship. On 18 November 2012, the sponsor married Ms Xuexin Feng. On 28 November 2012, Ms Feng and the sponsor separated and on 11 December 2014, the sponsor filed for divorce. There are no children from this relationship.

1. On 23 January 2011, the parties met at West Ashfield Club, Ashfield. On 7 March 2011, they developed a relationship (as boyfriend and girlfriend) and the applicant lived periodically with the sponsor in Redfern, NSW. The parties remained in contact with each other. On 23 January 2013, the parties commenced a de facto relationship.

   Is the applicant the de facto partner of an eligible person?

2. The Tribunal is satisfied that the sponsor, at the time of visa application and decision, was an Australian citizen who had turned 18.

   Are the parties in a de facto relationship?

3. ‘De facto partner’ is defined in s.5CB of the Act and 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).

   CLAIMS AND FINDINGS

4. 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 parties’ household and their commitment to each other, as set out in r.1.09A(3) of the Regulations which is attached to this decision.

5. Regarding the financial aspects of the parties’ relationship, the Tribunal does not accept that the parties have any joint ownership of real estate or other major assets or joint liabilities or have any pooling of financial resources, especially in relation to major financial commitments or that they owe any legal obligation in respect of the other or that they share day-to-day household expenses. The Tribunal has not been provided any information in support of the financial aspects of the parties’ relationship since February 2017.

6. Regarding the parties’ household, the Tribunal does not accept that the parties have any joint responsibility for the care and support of children or that they share living arrangements or share the responsibility of housework. The Tribunal has not been provided any information in support of the parties’ household since February 2017.

7. Regarding the social aspects of the parties’ relationship, the Tribunal does not accept that the parties represent themselves to other people as being in a de facto relationship with each other or that there is opinion from their friends and acquaintances about the nature of their relationship or that they plan and undertake joint social activities together. The Tribunal has not been provided any information in support of the social aspects of the parties’ relationship since February 2017.

8. Regarding the nature of the parties’ commitment to each other, the parties met in January 2011 and began their de facto relationship in January 2013. The applicant provided evidence about the parties’ commitment to each other up until February 2017. On that basis the Tribunal accepts that the parties lived together until at least that time.

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1. On 19 February 2019, the Tribunal wrote to the applicant and requested that she provide information in support of her relationship with the sponsor. The applicant was advised of the following: In assessing her matter the Tribunal must consider either r.1.09A (de facto relationship) or r.1.15A (spouse relationship) of the Migration Regulations. Regulations 1.09A and Regulation 1.15A provide that the Tribunal considers all the circumstances of the parties’ relationship including the financial aspects of the relationship; the nature of the household; the social aspects of the relationship and the nature of the parties’ commitment to each other. The applicant was provided with a guide to the type of information that may be provided and told that it was not a definitive list.

2. On 14 March 2019, the applicant’s migration agent wrote to the Tribunal and stated that the applicant had a substantial change of circumstances and is unable to provide the documents requested in the letter of 19 February 2019. The Tribunal has not been provided any information relating to the aspects of r.1.09A of the Regulations since February 2017.

3. On 18 July 2019, the Tribunal invited the applicant to a Tribunal hearing on 14 August 2019. On 7 August 2019, the applicant’s migration agent emailed the Tribunal. She provided a letter dated 5 August 2019 and stated that that the applicant’s circumstances had changed and the applicant was unable to participate in the scheduled Tribunal hearing set down for 14 August 2019. She also provided a completed response to hearing invitation form which directed that neither the applicant nor the sponsor would attend the Tribunal hearing.

4. On 9 August 2019, the Tribunal wrote to the applicant and asked whether she wanted to withdraw the application for review. On 12 August 2019, the applicant’s migration agent wrote to the Tribunal and stated that they are instructed to advised of the following:

   ·The sponsor asked the applicant to move out of the family home and she has done so.

   ·The sponsor has withdrawn his sponsorship for the application.

   ·The applicant does not want to withdraw the application for review.

   ·The applicant is now married to Mr Michael Freeman.

5. The applicant’s evidence to the Tribunal is as follows: the parties separated and the sponsor withdrew his sponsorship for the partner visa and the parties’ relationship ceased. The applicant is now married to Mr Michael Freeman who is a person other than the sponsor. On the evidence before the Tribunal it does not accept that the parties provide each other with companionship and emotional support or that they see their relationship as long term.

6. Due to the evidence that the parties’ relationship ceased and due to the lack of evidence to the contrary, the Tribunal is not satisfied that at the time of decision the parties are in a de facto relationship. Ultimately, this is because of the applicant’s evidence as detailed above and because the parties have not, provided any evidence to the Tribunal about the different aspects of their relationship relating to r.1.09A of the Regulations since February 2017. Due to the applicant’s evidence about the parties’ relationship and the lack of evidence to the contrary, the Tribunal is satisfied that the parties’ relationship has broken down, therefore the applicant is no longer the de facto partner of her sponsor and is unable to satisfy cl.820.221(1) of Schedule 2 to the Regulations.

7. The Tribunal, on the evidence is not satisfied that at the time of this decision, the parties have a mutual commitment to a shared life as de facto partners to the exclusion of all others, that the relationship is genuine and continuing and that the couple live together, or do not live separately and apart on a permanent basis.

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1. There is no evidence before the Tribunal that the applicant satisfies the requirements of any of the alternate subclauses.

2. Given these findings the Tribunal is not satisfied that at the time of this decision the parties were in a de facto relationship.

3. Therefore the applicant does not meet cl.820.221(1) and cl.820.221(3) of Schedule 2 to the Regulations.

4. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa. DECISION

5. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   Helena Claringbold
   Member

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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).

1. 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.

2. 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).

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