Parada (Migration)

[2020] AATA 6058

Parada (Migration) [2020] AATA 6058 (3 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Guadalupe Parada

CASE NUMBER:  1903118

DIBP REFERENCE(S):  BCC2018/882588

MEMBER:Joseph Francis

DATE AND TIME OF

ORAL DECISION AND REASONS:        3 December 2020 at 11:27 am (WA time)

DATE OF WRITTEN RECORD:               10 February 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the decision under review with the direction that the applicant meets the following criteria:

·Cl.820.211; and,

·cl.820.221.

Statement made on 10 February 2021 at 1:02pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – compelling reasons to waive Schedule 3 criteria – genuine de facto relationship for 12 months before the visa application – work commitments restricted joint residence – understanding of each other’s financial situation – social recognition of the relationship – Australian citizen child of the relationship – decision under review remitted   

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 2.03

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 January 2019 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under the Migration Act 1958 (the Act).

2. At the hearing on 3 December 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision of Member Joseph Francis on 3 December 2020. 

4. Ms Parada applied for the Class UK Visa on 23 February 2018 on the basis of her relationship with Mr Nicholas Kenneth Turney who lodged a sponsorship form in support of her application. 

5. The delegate assessed the application under subclause 2 of Clause 820.211.  As the parties claim to be in a de facto relationship the delegate considered the matter under Section 5CB for de facto couples.

6. The delegate did not consider there was sufficient information to demonstrate the parties were in a genuine de facto relationship for a period of 12 months prior to lodging the visa application as defined under the Migration Act.

7. Ms Parada and Mr Turney appeared before the Tribunal on today, 3 December 2020 in order to give evidence and present arguments. 

8. The applicant was represented during the hearing.  The Tribunal had before it a copy of the Department’s file containing Ms Parada’s visa application and the documentary evidence referred to by the Delegate.

9. Ms Parada provided the Tribunal a copy of the Delegates’ decision record with her application for review.  The history of the visa application can be summarised from the Delegate’s decision record and the Department’s file and the evidence submitted for consideration by the Tribunal. 

10. The Tribunal accepts that Ms Parada first met Mr Turney in person on 30 July 2016 in India while both were travelling overseas.  The parties commenced their friendship at that time.

11. On 27 August 2016 the parties committed to an exclusive relationship. 

12. In September 2016, Ms Parada visited Mr Turney in Australia before returning to Malaysia where she was living. 

13. The Tribunal accepts the evidence from both Mr Turney and Ms Parada that on 17 December 2016 during a reunion trip to Bali, Indonesia, the parties entered into a de facto relationship.

14. Prior to November 2017, the parties made a number of reunion visits to see each other and included travel to the UK to attend the wedding of a friend of Mr Turney’s and to meet other members of Mr Turney’s family.

15. The Tribunal accepts the evidence from the visa applicant that the parties did not live separate or apart on a permanent basis between 17 December 2016 and the time Ms Parada moved permanently to Australia on 27 November 2017. 

16. Further, the Tribunal accepts that as Ms Parada had outstanding work commitments in Kuala Lumpur, Malaysia, she was restricted in her ability to move permanently to Australia until November 2017.

17. The Tribunal is therefore satisfied that regulations 1.09A and 2.03A requiring the parties to have been in a de facto relationship for 12 months prior to the visa application date of 23 February 2018 are met. 

18. As such, I find the visa applicant meets subclause 820.211(2).

19. The parties have resided together since that time for over four years now at the time of this decision.  Neither party have previously been married.  The Tribunal notes Ms Parada has never been an unlawful non-citizen during her time in Australia.  In assessing this matter, the Tribunal also considered all of the requirements in Section 5CB and 5F for de facto and married couples with the following findings:

    Financial aspects of the relationship

20. The parties have pooled finances especially in relation to the costs of their household.  They share their income and expenses through a joint bank account and have a thorough understanding of each other’s financial situation.  The Tribunal places weight on the sharing and pooling of financial resources between the parties at the time of this decision.

    The nature of the household

21. The parties have spent a significant amount of time together both in Australia and overseas and have lived together for over four years at the time of this decision.  The Tribunal accepts the parties have shared a significant amount of time together now and do not live apart on a permanent basis.  The Tribunal finds the parties portray themselves to friends, family and acquaintances as a genuine married couple.

    Social aspects of the relationship

22. The Tribunal accepts the evidence of other parties that was submitted that the relationship is genuine and ongoing.  The Tribunal notes the written statements provided in support of the relationship by family and friends and accepts the relationship is widely known and accepted by all of the family of both of the parties.

    The nature of the commitment

23. The Tribunal finds the nature of the party’s commitment to each other is significant with particular consideration for the amount of time they have now lived together as a couple for over four years.  Some three years as a de facto and the last 14 months as a married couple.  The Tribunal notes the parties married at a ceremony held in Perth on 19 October 2019 and the Tribunal accepts the validity of that marriage.

24. The Tribunal notes that Mr Turney and Ms Parada became parents of an Australian citizen child, a daughter born in Perth on 24 October 2020. 

25. The Tribunal finds that the commitment therefore between the parties is significant and that both parties consider the relationship as long-term.

26. On the basis of the above, the Tribunal is satisfied that the requirements of Section 5CB are met at the time the application was made as defined by the Migration Act and Section 5F for married partners is met at the time of this decision.

27. There is no evidence Mr Turney is prohibited under subclause 2B from being a sponsoring partner and the applicant at the time of this decision.  The Tribunal is satisfied that visa applicant, Ms Parada, has met Clause 820.221 of the regulations.

28. Given the findings, the appropriate course of action is to remit the application.  I am remitting this matter to be returned to the Minister for re-consideration and to be returned to consider the remaining criteria for a Subclass 820 Visa.

    DECISION

29. The Tribunal remits the application for a Temporary Class UK Subclass 820 Visa with the direction the applicant meets both following criteria:  clause 820.211 and clause 820.221.

30. END OF ORAL DECISION    [11.26 am]

    Joseph Francis
    Member