OLIVEIRA OTAZU HERBETTA (Migration)

[2018] AATA 4512

OLIVEIRA OTAZU HERBETTA (Migration) [2018] AATA 4512 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Patricia OLIVEIRA OTAZU HERBETTA

CASE NUMBER:  1714034

DIBP REFERENCE(S):  BCC2015/3358517

MEMBER:Ann Duffield

DATE:12 September 2018

PLACE OF DECISION:  Brisbane

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 (Temporary)) visa:

·cl.820.211 of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 12 September 2018 at 10:08am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) visa – de facto relationship – living together for 3 years – expecting first child – emotionally support each other – plans for applicant’s daughter to migrate in the future – extensive documentary evidence provided – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A Schedule 2 cl 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 15 June 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 November 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (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 the delegate was 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 12 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Portuguese and English languages. As it transpired, the interpreter was not required as the applicant’s English language skills were excellent.

5. The applicant was represented in relation to the review by her registered migration agent and he attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Whether the parties are in a spouse or de facto relationship

8. Clause 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. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen. An extract from the Register of Citizenship by Descent is at Folio 45 of the department’s file.

   Are the parties in a de facto relationship?

9. As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. 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).

10. The parties registered their relationship ibn Queensland on 19 October 2015 (Folio 46 of the department’s file).

11. 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) which is attached to this decision.

12. The parties provided a significant amount of documents supporting their claims including photographs, tenancy agreements, utilities bills, tax assessments, payslips and medical evidence proving the applicant’s pregnancy. Their oral evidence was spontaneous, consistent and compelling. For the following reasons, the Tribunal is satisfied that the parties are in a genuine, continuing and exclusive spousal relationship envisaged by the Migration Act.

13. 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.

14. The parties opened a joint bank account in April 2014 and provided bank statements showing that they use the account to pay for household expenses including rent. Each party identifies the other as their de facto spouse in their tax returns and they share the same address. A tenancy agreement for a property their share in Hathaway Street indicates that they have a lease until June 2019. They both have their own personal bank accounts and provided statements to the Tribunal. The bank statements indicate that the parties pool resources and jointly pay for day to day household expenses.

15. 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.

16. The sponsor provided a statement he has made to the courts in relation to a custody matter involving his son from his first marriage. That document sets out in detail the relationship between the applicant and the sponsor’s family. The parties themselves at the hearing were able to satisfy the Tribunal that they shared all aspects of their household arrangements.

17. The applicant has a daughter who currently resides in Brazil. Asked why she was not included on the spouse application the applicant told the tribunal that her daughter’s father had not been very cooperative in the past in relation to providing an assurance that he would permit her daughter to migrate. She said that he had changed his mind over the past couple of years and they had been participating in mediation via Skype. She and the sponsor both told the Tribunal that they had plans to sponsor the applicant’s daughter to Australia as soon as they were able. The sponsor has met the applicant’s daughter and they have a sound relationship. They all communicate with each other on a daily basis through Skype and other electronic means. The applicant’s daughter and mother both came to Australia for three months over Christmas 2016 and lived with her and the sponsor.

18. The sponsor’s mother also told the Tribunal that the whole extended family was very close and that the applicant fitted in perfectly.

19. The Tribunal has considered the social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with 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.

20. The parties have provided substantial and compelling evidence that they are considered a couple by their family and friends and have declared themselves such to the Australian Tax Office. The parties are known to each other’s families and have spent significant amounts of time together.

21. 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.

22. The parties have been living together since early 2015 – more than three years. They have been able to demonstrate that they draw significant emotional support from each other and see their relationship as long term. They are expecting their first child together in January 2019. Their plans for the future include remaining at their current address with a view of purchasing the property from the owner in the future. The applicant has works as a photographer and hopes to continue to develop her skills. The sponsor is a year away from completing his apprenticeship.

23. The Tribunal is satisfied that the parties have a mutual commitment to a shared life together to the exclusion of all others. The Tribunal is satisfied that they see their relationship as long term. The Tribunal is satisfied that they live together.

24. 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 at the time of this decision.

25. Therefore the applicant meets cl.820.211 and cl.820.221.

    Are the additional criteria for a de facto relationship met?

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

27. 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: r.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.

28. The applicant has provided evidence that the relationship was registered on 19 October 2015 under the Queensland Relationships Act 2011. It is therefore the kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: r.2.03A(5). Accordingly, the 12 month requirement does not apply.

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

    CONCUSION

30. 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

31. 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 (Temporary)) visa:

    ·cl.820.211 of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    ·r.2.03A

    Ann Duffield
    Senior 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).