Perez (Migration)

[2021] AATA 2564

Perez (Migration) [2021] AATA 2564 (19 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Elfie Perez

CASE NUMBER:  1907262

HOME AFFAIRS REFERENCE(S):          BCC2018/956188

MEMBER:Steven Griffiths

DATE:19 May 2021

PLACE OF DECISION:  Adelaide

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(2)(a) of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 19 May 2021 at 10:29am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – 12-month requirement met – de facto relationship –decision under review remitted

LEGISLATION
Migration Act 1958, ss 5CB, 65
Migration Regulations 1994, rr 1.09A, 1.15, 2.03A, 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 28 February 2018 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(2) because the applicant did not meet the definition of de facto partner, as defined in c.5CB of the Act, of the sponsor.

4. The parties were assisted by their registered migration agent, Mr. Edel Chang, EA Migration and Education Agents.

5. The applicant appeared before the Tribunal on 18 May 2021 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor and a relative by marriage of the applicant, with the migration agent taking part in 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 Tribunal has taken into consideration all the evidence in the Department of Home Affairs file, the Tribunal file including additional information provided by the applicants prior to the hearing and the oral evidence of the hearing.

   ISSUE

8. The issue in the present case is whether the applicant is the de facto partner, as defined in s.5CB of the Act, of the sponsor.

   BACKGOUND OF THE EVIDENCE

9. Ms. Perez was born in the Philippines in 1978. Her parents, born 1946 & 1949, live in the Philippines as do her 2 sisters and 5 brothers, born 1970, 1971, 1973, 1976, 1980, 1983 & 1985.  She arrived in Australia on 2/7/16, having been granted a Visitor 600 Visa on 27/6/16 and cease 30/9/16, when she departed. She arrived again on 7/3/17, having been granted another 600 Visa on 9/2/17 and to cease 4/9/17, when she departed. She arrived again 7/12/17, having been granted another 600 Visa on 21/11/17 and to cease 7/3/18 and has been on a WA-010 Bridging Visa from 28/2/18.

10. Mr. Pellicci was born in England in 1968. His parents are deceased, and he has 2 sisters, born 1965 & 1966, living in the United Kingdom. He arrived in Australia 1/11/04 and is an Australian citizen by grant. He was previously married from 1995 to October 2017 and has 2 daughters, born 1997 and 2002, living in Australia.

11. The Tribunal notes the documented evidence that the applicant left the home shared with the sponsor on 16 December 2018, with the Department advised of this by telephone on 19 December 2018, and then lodged on 1 February 2019 a Form 1410 Statutory Declaration of Family Violence claim.

12. The Tribunal accepts the documented and oral evidence of the applicant that she has not lived with sponsor since 16 December 2018.

    INFORMATION TO THE TRIBUNAL

13. Since the Department made a decision, the parties have provided further information to the Tribunal including:-

    Applicant new Philippines Passport, 26/2/21

    Migration Agent submission, 6/5/21

    Applicant Statutory Declaration on relationship development to period of Partner visa lodgement, 23/4/21

    Applicant previous Visitor Visa applications and grant notices

    Applicant Statutory Declaration on ending of relationship, 23/4/21

    Sponsor submissions in support of Applicant Visitor Visa applications, 18/5/16 & 26/1/17 & 8/11/17

    Messages between the parties from 1/2/16

    Photos of the parties together from April 2016

    Cards between the parties from 2016

    Text messages between the parties

    Statutory Declaration, Ms. Keniel Zaragosa, friend of applicant, 5/3/19

    Applicant confirmation of employment 2004 to 2016, Philippines

    Messages of contact between the parties in May / July 2018 about sponsor injury

    Chronological details of injury of sponsor, January to June 2018

    Applicant Statutory Declaration, 20/2/18

    Facebook posts of parties, August & October 2016 - April, May, June, August, December  2017 – January, April, June, August 2018

    Form 888 Statement, Ms. Julianne Pellicci, previous wife of sponsor, 15/2/17

    Form 888 Statement, Mr. Graham Mair, friend of sponsor, 16/2/18

    Sponsor Divorce Order from 1^st wife, 10/10/17

    Sponsor National Police Check application, 23/9/18

    Applicant SA Police invoice, 3/10/18

    Applicant, Republic of Philippines, Department of Justice report, 18/10/18

    Joint name Commonwealth Bank account, opened 8/3/18, balance details for March to July 2018

    Two Bank accounts with transactions April to December 2018

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

14. Clauses 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. The Tribunal accepts the sponsor being an Australian Citizen by grant.        

    Are the parties in a de facto relationship?

15. 'De facto partner' is defined in 5CB of the Act, which 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).

16. 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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the other requirements for a de facto relationship met?

17. The Tribunal has considered the evidence relevant to the matters in r.1.15A. The Tribunal took into account the available documentary evidence contained on the Department’s file and the Tribunal’s file and evidence provided to the Tribunal.

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (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 expense

18. The Tribunal determines from the documented and oral evidence of the applicant that at the time of the visa application no real estate or other major assets was jointly owned by the parties.

19. The Tribunal determines from the documented and oral evidence of the applicant that at the time of the visa application the parties did not have any joint liabilities.

20. The Tribunal accepts the oral evidence of the applicant that the sponsor paid for the visitor visa applications that allowed her to travel to Australia in July 2016 for 90 days, then March 2017 for 180 days and then December 2017, and booked and paid for the 5 air flights associated with this travel, and determines this to represent, at the time of the visa application, the pooling of financial resources.

21. The Tribunal accepts the documented evidence of the sponsor, provided as part of the partner visa application, that the sponsor accepted responsibility for all costs associated with the applicant being in Australia as part of the visitor visas and determines this to present, at the time of the visa application, the pooling of financial resources.

22. The Tribunal accepts the oral documented and oral evidence of the applicant that the sponsor paid for all costs associated with the lodgement of the partner visa application and determines this to represent the pooling of financial resources.

23. The Tribunal accepts the documented and oral evidence of the applicant that for the period to March 2018 she did not operate a bank account in Australia, and was not earning any income, with all purchases and expenses required for the applicant and sponsor paid for by the sponsor and determines this to present, at the time of the visa application, a pooling of financial resources and the sharing of day-to-day household expenses.

24. The Tribunal accepts the oral evidence of the applicant that for the periods she was in Australia before March 2018 when the joint name bank account was established, that the sponsor had money kept in the home of the parties that the applicant was able to use in emergencies.  

25. The Tribunal accepts the documented and oral evidence of the applicant that a joint name bank account was established by the parties in March 2018, with income to this account coming from the income of the applicant, and until November 2018 the transfers out were to assist with household expenses and medical needs.

26. The Tribunal accepts the documented and oral evidence of the applicant that the income of the sponsor was never deposited to the joint name bank account.

27. The Tribunal determines from the documented and oral evidence of the applicant that at the time of the visa application none of the parties had a legal obligation to the other.

28. The Tribunal accepts the documented and oral evidence of the applicant that the sponsor, and his ex-wife, operate a property maintenance business in Adelaide. 

29. The Tribunal accepts the documented and oral evidence of the applicant that she worked in accounting offices for 15 years before leaving her position in late 2016 so that she would be able to live in Australia with the sponsor for extended periods.  

30. The Tribunal notes the oral evidence of the applicant that before the sponsor left the Philippines from his first trip in April / May 2016, he left approximately $ 1000 with the applicant to assist with her costs of living and any special needs, but did not have any documented or photographic evidence to support the suggestion, so the Tribunal places no weight on it.   

    Nature of the household aspects that must be considered include:-

    (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

31. The Tribunal accepts the documented and oral evidence of the applicant that she does not have children.

32. The Tribunal accepts the documented and oral evidence of the applicant that the sponsor has two daughters, born 1997 and 2002, from his first marriage.

33. The Tribunal accepts the documented, photographic and oral evidence of the applicant that the youngest daughter of the sponsor was collected from school on Friday afternoons, and stayed with the parties on Friday nights, every week and the applicant provided care and support for her as required. 

34. The Tribunal accepts the documented, photographic and oral evidence of the applicant that for the two trips made by the sponsor to the Philippines to be with the applicant in April and December 2016, totalling approximately 4 weeks, the sponsor lived with the applicant and her parents and siblings in the family home.

35. The Tribunal accepts the documented, photographic and oral evidence of the applicant that the applicant and sponsor lived together in the home of the sponsor from 2/7/16 to 30/9/16 (90 days), then from 7/3/17 to 4/9/17 (180 days) and then from 7/12/17 to when the applicant left the home on 16/12/18.

36. The Tribunal accepts the documented and oral evidence of the applicant of the roles undertaken by the applicant and sponsor while living together and determines, at the time of the visa application, the parties shared the responsibility for housework.  

    Social aspects of the relationship that must be considered include:-

    (i)whether the persons represent themselves to other people as being de facto partners 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

37. The Tribunal accepts the documented, photographic and oral evidence of the applicant of their contact with family and friends and determines, at the time of application, the parties represented themselves to other people as being de facto partners.   

38. The Tribunal accepts the oral evidence of the applicant that for the first trip of the sponsor to the Philippines in April / May 2016, the sponsor stayed with the applicant, her parents and siblings and the parties did not travel to any other location as the sponsor wanted to get to know the applicants family, and for them to know him, as a sign of the commitment the parties had to a long term relationship.

39. The Tribunal accepts the documented, photographic and oral evidence of the applicant that the parties families and their individual and collective friends, at the time of the visa application, were supportive of the de facto relationship. 

40. The Tribunal accepts the documented, photographic and oral evidence of the parties that the parties planned and undertaken joint social activities since the relationship began in February 2016 and determines, at the time of the visa application, the parties planned and undertook joint social activities in the Philippines and Australia.

    Nature of the commitment to each other that must be considered include:-

    (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.

41. The Tribunal accepts the documented and oral evidence of the applicant that the parties first made contact in October 2015 through a dating application, committed to a relationship on 23/2/16, with the sponsor travelling to the Philippines to meet the applicant and her family on 26/4/16 and remained in a relationship until the applicant left the home she shared with the sponsor on 16/12/18.

42. The Tribunal accepts the documented, photographic and oral evidence of the applicant that they have lived together from 26/4/16 for 14 days, from 21/12/16 for 14 days, in the Philippines, and from 2/7/16 to 30/9/16 and then from 7/3/17 to 4/9/17 and then from 7/12/17 in Australia.

43. The Tribunal accepts the documented and oral evidence of the applicant of the support the parties have provided to each other, for example when the sponsor was recovering from surgery and was totally dependent on the support of the applicant, and determines, at the time of application, a high level of companionship and emotional support was provided by each of the parties to the other.

44. The Tribunal accepts the documented, photographic and oral evidence of the applicant of the parties being committed to each other and determines, at the time of application, the parties had an ongoing commitment to each other and relationship.   

    Whether the parties are related by marriage

45. The Tribunal determines that the parties are not related by family. 

46. The Tribunal considered all the evidence on the circumstances of the parties that the evidence supports a finding that, at the time of the visa application, the parties had a mutual commitment to a shared life together as a couple to the exclusion of all others, with the relationship genuine and continuing and they had lived together.

47. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of the visa application. The Tribunal is further satisfied the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.

48. Therefore the applicant meets cl 820.211(2)(a).  

    Are the additional criteria for a de facto relationship met?

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

50. 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: reg 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.

51. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12-month requirement. The Tribunal determines that the parties had been in a de facto relationship since April 2016. Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12-month period ending immediately before the date of the application.

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

53. 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

54. 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

    ·reg 2.03A

    Steven Griffiths
    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).