Rigitano (Migration)

[2021] AATA 2935

Rigitano (Migration) [2021] AATA 2935 (16 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Francesco Rigitano

CASE NUMBER:  1806634

HOME AFFAIRS REFERENCE(S):          BCC2016/3682975

MEMBER:Linda Holub

DATE:16 June 2021

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations

·reg 2.03A.

Statement made on 16 June 2021 at 10:26 am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – financial aspects – nature of the household – social aspects – nature of the commitment – relationship registered under the Births, Deaths and Marriages Act 1995 – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cl 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 4 November 2016 on the basis of his relationship with his 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) and cl 820.221 because having considered all the evidence and information the applicant provided the delegate found it was not sufficient to demonstrate that the applicant is the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act.

4. On the evidence before it, the Tribunal considered it would be appropriate to make a favourable decision on the papers.

5. The applicant was represented in relation to the review by his registered migration agent.

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

BACKGROUND

1. The sponsor is an Irish national born in 1979. She first arrived on a Working Holiday visa (Subclass 417) in 2005 and was granted a Resident Return visa (Subclass 155) on May 2016. The sponsor has declared one previous de facto relationship from 2004 to 2014.

2. The applicant is an Italian national born in 1986 and is in Australia currently on a valid Bridging (subclass 020) visa. He first arrived in Australia on 8 August 2011 as a holder of a Tourist (Subclass 976) visa and departed on 3 September 2011. On 18 June 2012, he arrived in Australia as the holder of a Working Holiday (subclass 417). The applicant was granted his second Working Holiday visa on 17 June 2013 which was valid until 8 July 2014. On 29 July 2014, he was granted a Student (subclass 572) visa that was valid until 20 November 2016; On 4 November 2016 he lodged a Partner (subclass 820/801) visa application and was subsequently granted a Bridging (subclass 010) visa A. On 4 July 2017, he was granted a Bridging (subclass 020) visa B.

3. He has declared no previous the relationships. His parents and brother live in Italy.

CONSIDERATION OF CLAIMS AND EVIDENCE

10) The issue in the present case is whether the applicant is the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act.

Whether the parties are in a spouse or de facto relationship

11) Clause 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. In the present case the applicant claims to be the de facto partner of the sponsor who is a permanent resident.

Evidence provided by the parties

12) The applicant provided the Department with:

-Form 888 statements from friends

-ID documents for the applicant and his sponsor

-Police clearance certificates

-NSW Relationship Certificate dated 12 August 2016

-Residential Tenancy Agreement for a Newtown address which is a joint tenancy including the parties and two other people which was made in November 2016.

13) In addition to the Department’s Decision Record, the Tribunal was provided with:

-Statements by the sponsor and applicant about their relationship dated April 2021

-Joint statement by the sponsor and applicant regarding the nature of their household dated 24 May 2021

-Residential Tenancy agreements for their previous and current addresses with the parties as the sole two tenants

-Evidence of flights and travel arrangements to visit the sponsor’s uncle and aunt in Melbourne in January 2017, September 2017 and March 2019

-Evidence of travel arrangements for the Aunt’s funeral was provided

-Sponsor’s travel to Italy in June 2016 and May 2019 to meet the applicant’s family

-Applicant’s travel to Ireland in 2017 and 2019 to meet the sponsor’s family

-Joint bank statements from July 2016 – December 2020

-Superannuation notices of the sponsor and applicant nominating each other as binding beneficiaries

-Multiple Facebook Messenger Chat records between the sponsor and applicant

-Sample of greeting cards addressed to the couple for events such as Christmas or their engagement

-Screenshots of the sponsor and the applicant video chatting with family members overseas

-Photographs of the sponsor and applicant with family and friends, including from their trip to Ireland when they got engaged, as well as their trip to Italy

-Statements of support from family, colleagues and friends.

Are the parties in a de facto relationship?

14) '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).

15) 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.

Nature of persons’ commitment to each other

16) Statements from the parties dated April 2021 outline the history and development of their relationship. The statements are consistent with each other but provide their own perspectives on the relationship, events and travel undertaken.

17) According to the statements they met in Sydney in mid-November 2015 through mutual friends when the applicant’s friend and colleague Marco was house hunting. They started to socialise together, and their relationship developed slowly after that. From 1 January 2016 they officially became a couple and we were attending all their social events together.

18) The parties state they registered their relationship in June 2016 (a copy of their Relationship Certificate was provided). The applicant stated that they had been planning to get married in September 2020 in Italy, but as a result of the COVID-19 pandemic they have postponed the wedding, in the hoping the travel restrictions will be eased in the near future. He wrote that their families are Catholic, and their parents want them to have a church wedding.

19) In her statement, the sponsor stated that they plan to spend the rest of their lives together and that despite her age they are optimistic about starting a family. She stated that the parties are currently looking into IVF and that because their wedding plans are on hold, they have decided to prioritise becoming parents.

20) The Tribunal was provided with close to 2,000 pages of the couple’s chat history on Messenger. It provided ample evidence of the support they parties provide to each other and the significant amount of contact they have.

21) In relation to the emotional support and companionship the parties provide each other. In the sponsor’s statement of April 2021, she referred to a stressful time in July 2016 when she was overseas in Ireland attending her brother’s wedding and she and her housemate were served with a notice to vacate the property they were renting at the time. She explained that the applicant offered her support both emotionally and financially during that time by ensuring they vacated the property in time.

22) In the same statement, she refers to an incident in September 2020, when she was hospitalised due to a severe tooth infection for almost a week, and describes the care and support provided by the applicant. She states that he made the whole ordeal much easier for her.

23) In the applicant’s statement he wrote that the sponsor was the first to believe in him and his skills .He appreciates the she does not complain when he goes fishing on Saturday morning.

24) The Tribunal accepts the evidence supports a finding that the parties have a commitment to each other and that their relationship is genuine.

Financial aspects of the relationship

25) The applicant stated that the parties opened a joint bank account in August 2016 to pay the rent, but the bills were under his friend’s name and they split them with each other. Evidence was provided that the parties have both nominated each other as beneficiaries of their respective superannuation account. In relation to any joint assets, the applicant stated that without permanent visa he has been unable to obtain a mortgage or loan or a credit card.

26) In a joint statement provided by the parties dated 24 May 2021, they wrote that the applicant pays the utility bills and rent and that they both contribute equal amounts to cover all their expenses.

27) The bank statements provided by the applicant covering the period from July 2016-until December 2020 confirm the description of the way in which they pool their expenses.

28) The Tribunal accepts that the financial aspects suggests the existence of a spousal relationship.

Nature of the household

29) In the applicant’s April 2021 statement, he stated that the parties first lived together from August 2016 in house in Newtown. In February 2019, they moved to an apartment in Ashfield on our own however, in February 2021 we moved to an apartment in Zetland which is more suited to their lifestyle. Documentary evidence of these leases were provided. 

30) The parties stated that the applicant does most of the cooking and that the sponsor is the one that wash the dishes and he does most of the grocery shopping just because he has a car and the sponsor doesn’t like to grocery shop.

31) In a joint statement provided by the parties dated 24 May 2021, the parties stated that because the sponsor is currently not working, she does the majority of the housework, including cleaning, the laundry, washing up and she occasionally cooks .

32) The information provided as to the nature of the household is supportive of a finding that the parties live together, in an exclusive relationship and that the relationship is genuine and continuing.

Social aspects of the relationship

33) The statements of the parties refer to the fact that they have travelled together in Australia and overseas and  documentary evidence of that travel was provided. Their trips included:

·Melbourne on three occasions to spend time the sponsor’s aunt and uncle in January and October 2017 and again in March 2019 for her aunt’s funeral.

·Italy in July 2016.

·Europe in August 2017. On that occasion the applicant also went to Ireland to meet the sponsor’s family. During that trip he proposed to her.

·Ireland in May 2019 to went celebrate the applicant’s 40th Birthday.

34) The statements also state that the parties have attended a number of weddings together many including in:

·July 2016 in Italy

·February 2017 in Mudgee

·March 2017 in Watson Bay,

·September 2017 in Freshwater

·March 2018 in Glenworth Valley.

35) In a joint statement provided by the parties dated 21 May 2021, the parties stated that in their free time they relax at home, occasionally go out to eat but often opt for food being delivered and a movie at home together.

36) The Tribunal was provided with written statements of support from family, colleagues friends and a previous landlord. They not only attest to the genuineness of the relationship between the parties, they confirm aspects of their narrative provided by the parties and provide insights into the relationship. The Tribunal was also provided with copies of cards received by the them from friends and family members.

37) Based on the evidence, the Tribunal accepts that the parties represent themselves to other people, including family and friends as being a couple and that they are accepted as such. The Tribunal also accepts that they undertake social activities together and travel together. For these reasons the Tribunal is satisfied as to the social aspects of their relationship.

38) There is no evidence before the Tribunal that the parties are related by family.

Overall assessment

39) Although the applicant provided scant evidence to the Department in support of his visa application the Tribunal is of the view that the extensive further information made available to the Tribunal including the statements by the parties and witnesses, as well as the other supporting documentation was persuasive and the Tribunal is satisfied that the parties are generally committed to their relationship.

40) The Tribunal notes that the applicant did not provide a Form 40SP specifying his sponsor for the purposes of providing sponsorship of the partner visa application. The Tribunal also notes that there is no legislative requirement to do so although evidence is required that the person named as the sponsor, is prepared to undertake the responsibilities of sponsorship. The Tribunal, having regard to the totality of the evidence before it, including the evidence submitted to the Department and to the Tribunal is satisfied that Karen McMeamin was and continues to be the applicant’s sponsor.

41) On the basis of the above the Tribunal finds that at the time of application and at the time of decision, the parties were not living separately and apart on a permanent basis and that they saw their future as a long-term one. The Tribunal is also satisfied that at time of application and time of decision that the parties continue to have a mutual commitment to a shared life to the exclusion of all others and that the relationship is genuine and continuing.

42) On the basis of the above the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time the visa application was made and at the time of this decision.

43) Therefore, the applicant meets cl 820.211(2)(a)] AND/OR cl 820.221(8).

Are the additional criteria for a de facto relationship met?

44) 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.

45) 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.

46) The applicant has provided evidence that the relationship is registered under the Births, Deaths and Marriages Act 1995, as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: reg 2.03A(5). Accordingly, the 12 month requirement does not apply.

47) For these reasons the Tribunal is not satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

48) 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

49) 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 of Schedule 2 to the Regulations

·reg 2.03A.

Linda Holub
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).

1. 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.

1. 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).