Prudente (Migration)

[2024] AATA 4038

Prudente (Migration) [2024] AATA 4038 (9 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pamela Marie Gutierrez Prudente

REPRESENTATIVE:  Mr Adrian Phillip Joel

CASE NUMBER:  1930907

HOME AFFAIRS REFERENCE(S):          BCC2018/783

MEMBER:Antonio Dronjic

DATE:9 October 2024

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)(a) of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 9 October 2024 at 11:20am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – de facto partner of the sponsor – nature of the household is an indicator of a genuine and continuing relationship – parties see their relationship as a long-term commitment – financial aspects of the parties’ relationship points in favour of them being in a genuine and continuing relationship – applicant has provided evidence that the relationship is registered – applicant meets the additional criteria – decision under review remitted             

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, rr 1.09, 2.03A, Schedule 2, cl 820.211

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 1 January 2018 based on 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211. The delegate assessed the application pursuant to cl 820.211(2), finding it to be the only subclause relevant to the applicant’s circumstances, and found that the information and evidence, submitted in support of the application, was not sufficient to demonstrate that, at the time of application, the applicant satisfied the definition of de facto partner under s 5CB of the Act.  

4. On 31 October 2019, the applicant applied to the Tribunal for review of the delegate’s decision and with the application submitted a copy of the primary decision record. On 26 April 2023, the Tribunal invited the applicant to provide further and contemporary information and supporting evidence addressing the circumstances of her relationship with her sponsor.

5. On 7 May 2024, the Tribunal (differently constituted) wrote to the applicant pursuant to s.359(2) of the Migration Act 1958 (the Act). The letter invited the applicant to provide information in writing that will demonstrate she is the spouse or de facto partner of the sponsoring partner.

6. On 11 June 2024, after being granted an extension of time to do so, the applicant’s representative submitted legal submissions and documentary evidence in support of the application.

7. On 5 September 2024, the Tribunal wrote to the applicant advising that it had considered the material before it and was unable to make a favourable decision on this material alone and invited the applicant to appear before the Tribunal at a video hearing on 3 October 2024.

8. On 25 and 29 September 2024, the applicant’s representative submitted legal submissions and documentary evidence in support of the application.

9. The applicant appeared before the Tribunal on 3 October 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor, Ms Melani De Lara. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

10. Ms Pamela Prudente is 51 years of age and a citizen of Philippines. The highest level of education completed in Philippines was a degree in Electrical Engineering. She does not own property or any major assets in Philippines. Her sister lives in the USA and brother in Philippines.

11. She first came to Australia on 22 February 2010 as a holder of a visitors’ visa that expired on 23 March 2010. She remained in Australia as an unlawful non-citizen. On 30 June 2015, she was located in the community and taken into detention. On 3 August 2015, she was granted a Bridging E visa in association with her application for a Protection visa.

12. On 15 September 2015, her application for a protection visa was refused by the Department. She applied for a review of that decision and on 20 November 2017, the Tribunal (differently constituted) affirmed the primary decision. On 1 January 2018, she applied for a partner visa, based on defacto relationship with Ms Melani De Lara.

13. Pamela and Melani gave consistent evidence at the hearing regarding the history of their relationship. In summary, they first met in mid-2010. After two months, Pamela moved in with Melani and her two children. They lived together until February 2013 when the relationship broke down and Pamela moved out of Melani’s residence.

14. Between February 2013 and February 2017, Pamela was living in Melbourne. From 2015 to 2017, she had a relationship with Ms Mylene Rayo. After that relationship broke down, Pamela travelled with her sister to Sydney and soon after re-commenced relationship with Melani. They been living together since February 2017.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The primary criteria to be satisfied at the time of application are set out in cl 820.211(1). This requires that the applicant is not the holder of a Subclass 771 (Transit) visa and that she meets one of the alternate requirements set out in cl 820.211(2), (5), (6), (7), (8) or (9).

17. The Tribunal has reviewed the applicant’s movement records which also detail her visa status at various times. The Tribunal is satisfied that, at the time of application, she was not the holder of a Subclass 771 (Transit) visa. Therefore, the Tribunal finds that cl 820.211(1)(a) is met.

18. The subclause relevant to the applicant’s circumstances is cl 820.211(2)(a). Accordingly, in this case, the issue for determination is whether, at the time of application, the applicant and the sponsor were de facto partners for the purposes of the Act.

    Whether the parties are in a spouse or de facto relationship

19. Clause 820.211(2)(a)] require 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. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen.

    Are the parties in a de facto relationship?

20. '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).

21. 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 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.

22. In order to make the requisite findings about the reg 1.09A(3) matters and the s 5CB(2) requirements, the Tribunal has had regard to all the documents on the Department’s file and on the Tribunal’s file. The Tribunal notes that, in this review, much evidence has been submitted in support of the applicant’s claim that she has been in a de facto relationship with the sponsor at all relevant times.

    Financial aspects of the relationship

23. Both the applicant and her sponsor confirmed in their written statements that, at the time of application or at any time thereafter, they do not jointly own real estate or other major assets.

24. They operated a joint bank account since 2017. Pamela registered cleaning business in early 2018 and has been depositing her earnings into the joint account. Melani works at the Australia Post and has her own bank account. She transfers necessary funds to their joint bank account when required.

25. The Tribunal accept the parties’ claim that they both contributed to payment of bills and expenses since they started living together in 2017. The Tribunal also accepts the parties’ claim that they jointly purchased some furniture for the flat they have been living together for seven years.

26. Both Pamela and Melani have signed new tenancy agreement related to the Station Street apartment at Kogarah, NSW and in that respect the Tribunal accepts that they are jointly liable for payment of rent and utility accounts. Pamela and Melani do not own a car. They do not have life insurance.

27. The Tribunal acknowledges that the evidence of the financial aspects of the relationship is limited but indicates that the applicant and her sponsor are in a genuine and continuing relationship.

    The nature of the household

28. Parties do not have joint responsibility for the care and support of children. The sponsor was previously married and has 2 adult children from that marriage. In her evidence, the applicant exhibited good knowledge of the sponsor’s past relationship and family composition.

29. With respect to the living arrangements of the persons, it has been consistently claimed that the parties lived together from October 2017 to the present time. The Tribunal accepts the evidence supporting the claimed living arrangements and gives significant weight to the finding that the parties have been living together for more than 6 years since lodgement of the visa application.

30. With respect to any sharing of the responsibility for housework, the Tribunal accepts the parties’ oral evidence stating that they share household chores. Overall, having considered evidence presented to the Department and the Tribunal, the Tribunal is satisfied that the parties were in a partner relationship.

    The social aspects of the relationship

31. With the visa application, the parties provided several statutory declarations, including the declaration provided by the sponsor’s son Mark Alvarez and his wife Maria, Pamela’s relative Marco Vegara. The applicant submitted many photographs depicting the applicant and her sponsor in various social settings.

32. The Tribunal is satisfied, based on the statutory declarations, statements and photographs provided, that the applicant and sponsor represent themselves to other people as being in a de facto relationship. The Tribunal is further satisfied that the opinion of the persons’ friends and acquaintances about the nature of their relationship is that it is genuine, committed, supportive and continuing. The Tribunal is satisfied that the applicant and sponsor plan and undertake their joint social activities.

33. The evidence of the social aspects of the relationship indicates that the parties have a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing, and that they live together, and not separately and apart, on a permanent basis.

    The nature of the persons’ commitment to each other

34. The Tribunal accepts the applicant’s and the sponsor’s evidence about the inception and development of their relationship. The Tribunal gives weight to the evidence about the duration of their committed relationship throughout the years.

35. The Tribunal accepts that at the time of application, neither party was in a relationship with any third party. With respect to the length of time during which the persons have lived together, the Tribunal is satisfied from the evidence before it that the parties have lived together from October 2017 to the present time.

36. With respect to the degree of companionship and emotional support that the persons draw from each other and whether the persons see the relationship as a long term one, the Tribunal accepts and gives weight to all the claims made by the parties in their respective statements about these matters.

37. Accordingly, the Tribunal is satisfied, considering all the evidence cumulatively, that the applicant and the sponsor have demonstrated, and continue to demonstrate, a level of commitment to one another and to their de facto relationship as contemplated in the Regulations.

    Conclusion on the s 5CB(2) requirements

38. For the reasons given with respect to the reg 1.09A(3) matters, the Tribunal is satisfied that at the time of application, the applicant and the sponsor:

    ·    were not and are not in a married relationship (for the purposes of s 5F of the Act) with each other;

    ·    had and have a mutual commitment to a shared life to the exclusion of all others, as required by s 5CB(2)(a) of the Act;

    ·    had and have a genuine and continuing relationship, as required by s 5CB(2)(b) of the Act; and

    ·    lived and live together, as required by s 5CB(2)(c)(i) of the Act.

39. Section 5CB(2)(d) of the Act requires that the parties not be related by family. There is nothing in the information before the Tribunal to suggest that the parties are related by family. To the contrary, both in the applicant’s record of responses for the visa application that is on the Department’s file and in the sponsor’s record of responses for ‘sponsorship for a partner to migrate to Australia’ which is on the Tribunal’s file, the parties declared that they are not related to the other by blood, marriage or adoption. The Tribunal accepts the veracity of these statements and finds that the applicant and the sponsor are not related by family. Section 5CB(2)(d) of the Act is met.

40. Based on the above, the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time the visa application.

    Are the additional criteria for a de facto relationship met?

41. 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.

42. 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.

43. The applicant has provided evidence that the relationship is registered on 22 July 2017 under the NSW Births Deaths and Marriages Registration Act 1995 as a kind of relationship prescribed in the Acts: reg 2.03A(5). Accordingly, the 12-month requirement does not apply.

44. For these reasons, the Tribunal is satisfied that the applicant meets the additional criteria.

45. 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

46. 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

    Antonio Dronjic
    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).