Poblete (Migration) - [2024] AATA 129

Poblete (Migration) [2024] AATA 129 (21 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Mariza Gaddao Poblete
REPRESENTATIVE:  Miss Charleen Ventura (MARN: 1462697)
CASE NUMBER:  1932398
HOME AFFAIRS REFERENCE(S):          BCC2016/1578448
MEMBER:Christine Kannis
DATE:21 January 2024
PLACE OF DECISION:  Perth

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
·cl 820.221(2) of Schedule 2 to the Regulations
·reg 2.03A

Statement made on 21 January 2024 at 2:22pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship until sponsor’s death – financial, household and social aspects of relationship and nature of commitment – long relationship – sponsor’s health and applicant’s extensive care – deed of family arrangement between applicant and sponsor’s adult children – no close business or cultural ties – personal ties – church and friends – supporting statements – application made more than 28 days after last substantive visa held – long period as unlawful non-citizen – compelling reasons for not applying criterion – insufficient funds to make partner visa application – effect of sponsor’s death on consideration of compelling reasons – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65
Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A(3), Schedule 2, cls 820.211(2)(a), (d)(ii), 820.221(2)(c), Schedule 3, criterion 3001
CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
Kaur v MICMSMA [2020] FCCA 1081
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 26 April 2016 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 the applicant.
The visa was refused because the delegate was not satisfied that the applicant’s relationship with the sponsor met the definition of a de facto relationship under the Act and therefore she did not satisfy cl 820.211(2)(a). The delegate also decided that the applicant did not meet cl 820.211(2)(d)(ii).
The applicant appeared before the Tribunal by MS Teams video on 9 January 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Are the requirements for a spouse or de facto relationship met?
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Poblete (Migration)

Details

AGLC: Poblete (Migration) [2024] AATA 129
Case: [2024] AATA 129
Decision Date: 21 January 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Temporary) (Class UK) visa, Subclass 820, made by a Philippines national. The applicant claimed to have been in a de facto relationship with the Australian citizen sponsor from 1 November 2008 until the sponsor's death on 9 August 2017. The primary dispute concerned whether the applicant met the criteria for the visa, particularly in light of the sponsor's death and the applicant's status as an unlawful non-citizen for an extended period.

The Tribunal was required to determine two main legal issues. Firstly, whether the applicant met the requirements of clause 820.211(2)(a) at the time of application and clause 820.221(2) at the time of decision, which relate to the existence of a de facto relationship and the circumstances following the sponsor's death. Secondly, the Tribunal had to consider whether the applicant met the Schedule 3 criteria, and if not, whether there were compelling reasons for these criteria to be waived.

In its reasoning, the Tribunal applied the definition of a de facto relationship under section 5CB of the Migration Act 1958 (Cth), which requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, cohabitation (or not living separately and apart on a permanent basis), and that the couple are not related by family. The Tribunal also had regard to regulation 1.09A(3) of the Migration Regulations 1994, which mandates consideration of financial, household, and social aspects of the relationship, as well as the nature of the commitment between the parties. The Tribunal noted that the applicant had provided evidence of financial support from the sponsor due to her lack of a work permit.

The Tribunal concluded that the matter should be remitted for reconsideration by the Minister. It directed that the applicant meets the criteria under cl 820.211(2), cl 820.221(2), and reg 2.03A of the Migration Regulations 1994, indicating that further assessment of the remaining visa criteria was necessary.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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·cl 820.221(2) of Schedule 2 to the Regulations ·reg 2.03AChristine KannisMemberATTACHMENT - Extract from Migration Regulations 19941.09A 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).Schedule 33001(1)The application is validly made within 28 days after the relevant day (within the meaning of subclause (2)).(2)For the purposes of subclause (1) and of clause 3002, the relevant day, in relation to an applicant, is:(a)if the applicant held an entry permit that was valid up to and including 31 August 1994 but has not subsequently been the holder of a substantive visa — 1 September 1994; or(b)if the applicant became an illegal entrant before 1 September 1994 (whether or not clause 6002 in Schedule 6 of the Migration (1993) Regulations applied or section 195 of the Act applies) and has not, at any time on or after 1 September 1994, been the holder of a substantive visa — the day when the applicant last became an illegal entrant; or(c)if the applicant:(i) ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or(ii) entered Australia unlawfully on or after 1 September 1994;whichever is the later of:(iii) the last day when the applicant held a substantive or criminal justice visa; or(iv) the day when the applicant last entered Australia unlawfully; or(d)if the last substantive visa held by the applicant was cancelled, and the Tribunal has made a decision to set aside and substitute the cancellation decision or the Minister's decision not to revoke the cancellation — the later of:(i) the day when that last substantive visa ceased to be in effect; and(ii) the day when the applicant is taken, under sections 368C, 368D and 379C of the Act, to have been notified of the Tribunal's decision.3003If:(a)the applicant has not, on or after 1 September 1994, been the holder of a substantive visa; and(b)on 31 August 1994, the applicant was either:(i) an illegal entrant; or(ii) the holder of an entry permit that was not valid beyond 31 August 1994;the Minister is satisfied that:(c)the applicant last became an illegal entrant, or, in the case of a person referred to in subparagraph (b)(ii), last became a person in Australia without a substantive visa, because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with the conditions that apply or applied to:(i) the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(ii) any subsequent bridging visa; and(f)the applicant would have been entitled to be granted an entry permit equivalent to a visa of the class applied for if the applicant had applied for the entry permit immediately before last becoming an illegal entrant or, in the case of a person referred to in subparagraph (b)(ii), if the applicant had applied for the entry permit on 31 August 1994; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)the last entry permit (if any) held by the applicant was not granted subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.3004If the applicant:(a)ceased to hold a substantive or criminal justice visa on or after 1 September 1994; or(b)entered Australia unlawfully on or after 1 September 1994 and has not subsequently been granted a substantive visa;the Minister is satisfied that:(c)the applicant is not the holder of a substantive visa because of factors beyond the applicant's control; and(d)there are compelling reasons for granting the visa; and(e)the applicant has complied substantially with:(i) the conditions that apply or applied to:(A)the last of any entry permits held by the applicant (other than a condition of which the applicant was in breach solely because of the expiry of the entry permit); and(B)any subsequent bridging visa; or(ii) the conditions that apply or applied to:(A)the last of any substantive visas held by the applicant (other than a condition of which the applicant was in breach solely because the visa ceased to be in effect); and(B)any subsequent bridging visa; and(f)either:(i) in the case of an applicant referred to in paragraph (a) — the applicant would have been entitled to be granted a visa of the class applied for if the applicant had applied for the visa on the day when the applicant last held a substantive or criminal justice visa; or(ii) in the case of an applicant referred to in paragraph (b) — the applicant would have satisfied the criteria (other than any Schedule 3 criteria) for the grant of a visa of the class applied for on the day when the applicant last entered Australia unlawfully; and(g)the applicant intends to comply with any conditions subject to which the visa is granted; and(h)if the last visa (if any) held by the applicant was a transitional (temporary) visa, that visa was not subject to a condition that the holder would not, after entering Australia, be entitled to be granted an entry permit, or a further entry permit, while the holder remained in Australia.

Ratio Decidendi

Legal Principle Established

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCEAre the requirements for a spouse or de facto relationship met? The applicant is a Philippines national. The sponsor passed away on 9 August 2017 and was an Australian citizen. The applicant claimed to have been in a de facto relationship with the sponsor from 1 November 2008 until his death. Clause 820.211(2)(a) requires that at the time the visa application was made, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. Relevant to the present case, the time of decision criteria in cl 820.221(2) says:(2) An applicant meets the requirements of this subclause if the applicant: (a) would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and(b) satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died; and (c) has developed close business, cultural or personal ties in Australia. Section 5CB of the Act 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). In forming an opinion as to whether parties 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 reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206. The first issue in the present case is whether the applicant meets the requirements of cl 820.211(2)(a) at the time of application and cl 820.221(2) at the time of decision. The second issue is whether the applicant meets the Schedule 3 criteria as required by cl 820.211(2)(d)(ii) and if not, whether there are compelling reasons for not applying the criteria. The Tribunal considered the evidence against the reg 1.09A(3) factors.Financial aspects The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses. At the time of application the applicant provided a written statement dated 22 April 2016 in which she said she and the sponsor had been living together for 8 years and that the sponsor supported her financially because she did not have a work permit.