Pinilla Mantilla (Migration)

[2019] AATA 3933

Pinilla Mantilla (Migration) [2019] AATA 3933 (14 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Stefania Pinilla Mantilla

CASE NUMBER:  1713207

HOME AFFAIRS REFERENCE(S):           BCC2015/2366637

MEMBER:David Crawshay

DATE:14 August 2019

PLACE OF DECISION:  Melbourne

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) of Schedule 2 to the Regulations; and

·cl.820.221 of Schedule 2 to the Regulations.

Statement made on 14 August 2019 at 9:58am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – attempts to integrate finances – living together – social aspects of relationship – recognition by family and friends – joint social activities – joint purchase of property – plans to start a family – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; 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 Immigration and Border Protection 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 is Mrs Stefania Pinilla Mantilla, 32, a citizen of Colombia.

3. The applicant applied for the visa on 17 August 2015 on the basis of her relationship with her sponsor, Mr Martin Sebastian Lauria, 31, who is an Australian citizen.

4. 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 (the Regulations).

5. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(2) because the applicant did not meet the definition of spouse under s.5F of the Act. Specifically, the delegate found that there was not convincing evidence that the parties present themselves as a married couple to family or the wider community, that they undertake regular joint social activities, that they take holidays or short breaks together, that they attend any significant events together or that they belong to any organisations or groups.

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

   BACKGROUND

7. A short history of the parties reveals that they claim to have met in a bar in Sydney in August 2013. At that point, the applicant was studying in Sydney as a holder of a student visa (TU-570). The sponsor worked in Melbourne but claims to have been in Sydney to visit friends. The parties claim to have gone on dates together at Circular Quay and Manly over the next few days before the sponsor returned to Melbourne.

8. The parties then claim to have communicated extensively with each other and in October 2013, the applicant joined the sponsor in Melbourne and the parties travelled along the Great Ocean Road with a friend of the applicant before she returned to Sydney. There followed several claimed trips to and from their home bases to see each other, as well as to Adelaide in April 2014 to celebrate six months as boyfriend and girlfriend.

9. In October 2014, on their one-year anniversary together, the sponsor claims to have proposed to the applicant at a hotel in Sydney. They celebrated their engagement with friends and family at a party in Melbourne in November 2014, as well as with a gathering of friends in Sydney in December 2014.

10. In mid-December 2014, the parties flew separately to Colombia and spent time with the applicant’s family there, including at an engagement party at the applicant’s family home.

11. Following her graduation from a Masters’ degree from Macquarie University in Sydney in June 2015, the applicant claims to have moved in with the sponsor at a Brunswick address. In July 2015, the parties were married in Melbourne, and in August 2015, the applicant submitted the visa application.

12. In October 2015, the parties travelled to Colombia to be married there before heading to the Bahamas for their honeymoon.

13. Since then, the parties claim to have travelled extensively as a couple and socialised with friends and family.

14. In early 2017, the parties claim to have moved in with the sponsor’s parents in Bundoora, purportedly in an effort to save money for a deposit on a house.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant is the spouse of the sponsor under s.5F of the Act.

    Whether the parties are in a spouse or de facto relationship

16. ‘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. For persons to be in a married relationship they 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 separately and apart, on a permanent basis: s.5F(2)(a)-(d).

17. 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, the nature of the applicant’s and sponsor’s household and their commitment to each other, as set out in r.1.15A(3) (which is extracted in the attachment to this decision). Each of the specific matters contained in r.1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

18. 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) A marriage certificate was issued on 23 July 2015 for a wedding which took place on 18 July 2015.

    Are the other requirements for a spouse relationship met?

19. The Tribunal notes the paucity of evidence submitted by the parties to the Department at first instance. However, it also notes that, since the decision of the delegate in June 2017, substantial further evidence has been submitted to the Tribunal by the parties, relevantly including:

    ·a timeline of events cross-referencing evidence relating to those events;

    ·statutory declarations from a number of family and friends of both parties;

    ·flight itineraries for several interstate and overseas trips;

    ·statements for individual and joint bank accounts;

    ·confirmation emails for hiring of venues;

    ·statements of rental payments and a letter from the rental agency;

    ·receipts for claimed joint purchases of furniture and other goods;

    ·photographs of the parties by themselves and with others, including at their weddings, out and about, and when travelling in Australia and overseas.

20. The Tribunal considers that this additional evidence goes directly to addressing the four matters for consideration under subreg.1.15A(3) – namely, 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.

21. The parties have submitted evidence of their attempts to integrate their finances. The evidence shows that they have been paying for rent, utilities, furniture and other goods, and groceries through their individual accounts and (where necessary) have been reimbursed by the other party. More recently, in 2017, they have opened a joint spending account which they use for everyday purposes, although it is noted that the parties do not appear to deposit their salaries into this account. In 2015 the parties opened a joint savings account to which they have jointly contributed in an effort to amass a deposit for a house. Evidently, the parties have been successful, as they have purchased a property (see below). The parties have also submitted evidence of superannuation binding death nominations made in respect of the other. Although the Tribunal notes that these nominations can be made and rescinded quite easily, it accepts the veracity of these in light of a preponderance of other probative evidence. The Tribunal accepts this evidence and is satisfied that the parties have sought to integrate their finances. It gives this aspect significant weight.

22. Evidence submitted by the parties – most notably contemporaneous photographs – shows that they endeavoured to see each other regularly when they were living separately in the period from 2013 to 2015. The parties claim to have lived together since the applicant moved to Melbourne in July 2015, and evidence has been provided in the form of a ledger of rental payments and a letter from the relevant rental agency in March 2017 to attest to this claim. The Tribunal also notes extensive evidence of joint purchases of furniture for their household dating from around the time of the parties’ marriage in July 2015 and considers that it is reasonable to conclude that these would be for the purposes of their shared home. More recently, the parties claim to have moved in with the sponsor’s parents in Bundoora to aid them in saving for their house, and the parents have signed a statutory declaration in support of this claim which the Tribunal accepts. The Tribunal accepts that this evidence goes to prove that the parties have been living together from July 2015, and not separately and apart at times before that date, and gives it significant weight to this in its overall consideration.

23. As regards the social aspects of the relationship, the Tribunal has been provided with extensive evidence – photographic and otherwise – that corroborates the parties’ detailed timeline of events. This timeline includes multiple trips to locations in Australia and overseas, as well as various celebrations. The photographs presented invariably show the parties surrounded by many members of their families and their friends. At their two weddings, members of both families attended, along with friends. The parties appear to have been embraced by both families, and both are routinely included in the other family’s celebrations.

24. The Tribunal has also had the benefit of calling on numerous statutory declarations from family, friends and co-workers of the parties which attest to the recognition of the parties’ relationship by others. Three of the declarants were in the sponsor’s bridal party at both weddings, and all three gave evidence about how they had met the applicant early on in the relationship and continued to either spend time with the parties on a regular basis or (in the case of a friend of the sponsor who lives in Perth) witness the sponsor regularly communicating with the applicant when the sponsor stayed at his place. The Tribunal is comfortably satisfied that these pieces of evidence go to demonstrate that the parties represent themselves to, and are recognised by, friends, family and others as a married couple, and has accorded this significant weight.

25. The parties have provided photographs which chronicle the important events in their relationship – from their first meeting in August 2013, covering their engagement period and their two separate weddings in 2015, and through to recent anniversaries, birthday celebrations and other special occasions. Most of these events are well-celebrated, and the parties (especially the applicant) are adept at organising them. The Tribunal considers this ample evidence of the parties’ ability to plan and undertake joint social activities. It gives this significant weight.

26. Turning to the nature of the parties’ commitment to each other, the Tribunal accepts from the detailed chronology and contemporaneous photographs submitted that the parties met as claimed in August 2013. For reasons given above, it also accepts that the parties have lived together since June 2015. The parties travel extensively and entertain regularly. They celebrated two weddings which were both well-attended. They have friends who attest to their commitment based on seeing them interacting with each other. One declarant, a Mr Steven Donald, described the parties as the “glue” of their friendship group.

27. In other words, the parties appear to operate as a couple with a significant emotional investment in each other and who support each other. In photographs, they present as being close to and at ease with each other. Recently, the applicant suffered a health scare and evidence was given that the sponsor took time off work to help her convalesce and to look after her mother who had come from Colombia to support her daughter. The Tribunal finds compelling the number of statutory declarations attesting to the genuineness of the parties’ relationship and their love for and commitment to each other. The Tribunal finds that the parties draw a significant degree of emotional support and companionship from each other, and they have a substantial and genuine commitment to each other. It gives this aspect significant weight in its consideration of whether the applicant is a spouse of the sponsor.

28. In October 2017, the parties bought an off-the-plan property in Brunswick East, and have submitted a contract signed by both parties as evidence. The parties have lastly spoken about their plans to start a family. Such evidence is accepted by the Tribunal as proof the parties view their relationship as long-term, and is given significant weight.

    CONCLUSION

29. Having considered all of the evidence submitted, 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. The parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, their relationship is genuine and continuing and they live together.

30. Therefore the applicant meets cl.820.211(2) and cl.820.221.

31. 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

32. 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) of Schedule 2 to the Regulations; and

    ·cl.820.221 of Schedule 2 to the Regulations.

    David Crawshay
    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).