Sarono (Migration)

[2023] AATA 2742

Sarono (Migration) [2023] AATA 2742 (11 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mario Sarono

CASE NUMBER:  1914381

HOME AFFAIRS REFERENCE(S):          BCC2014/3275564

MEMBER:Justin Meyer

DATE:11 August 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

·cl 100.221 of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 11 August 2023 at 4:25pm

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – comprehensive and detailed evidence provided to tribunal – length of relationship – decision made without hearing necessary – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5CB(2), 65, 360(2)(a)

Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A, Schedule 2, cl 100.221

CASE

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 on 23 May 2019 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 November 2014 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 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.

4. The delegate in this case refused to grant the visa on the basis that at the time of decision there was no information which demonstrated that the applicant continued to be the spouse or de facto partner of the sponsoring partner. It was therefore found that the applicant did not satisfy subclause 100.221(2) and any of subclauses 100.221(2A), (3), (4) or (4A). Thus subclause 100.221(1) was not met on the date of decision, the delegate found.

5. The applicant seeks review of the delegate’s decision.

6. The applicant provided further information to the Tribunal in support of his claims in June 2023. This information addressed each of the relevant criteria, and was comprehensive, detailed and cogent.  The updated evidence included approximately 65 Photographs (various, group, holiday), a passport, a statutory declaration of the sponsor dated 30 May 2019, Form 888 Statutory Declarations - Ruth Castel Roa & Maria Cortez, bank statement of 2017 and joint account, police checks, private security documents, car registration, flights  information and a tax return of 2016 – 2017 for the applicant.

7. The evidence and submissions provided by the applicant strongly supported his claims. The submissions provided were clear, directed to the issues that required determination and were supported by, or referred to, specific evidence provided or already provided.

8. Accordingly, in reaching my decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

9. For the following reasons, I have concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether visa applicant is the de facto partner of his sponsor at the time of this decision.

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

    Are the parties in a de facto relationship?

12. '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).

13. 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.

14. In assessing these issues, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files.

15. The relationship can be summarised as follows:

    ·The applicant was previously married from 2003 to 2007. There is one daughter from this relationship, born in 2003.

    ·The sponsor disclosed one previous relationship. She married in 1988 and her husband passed away in 2011. There were no children from this relationship.

    ·The parties claim that they first in April 2012 and began to commit to their relationship in November 2012.

16. Financial aspects

    Evidence before the Department:

    ·Nil (for the purposes of subclass 100 determination).

    Evidence before the Tribunal

    ·According to the sponsor’s statutory declaration dated 6 April 2023, the parties are sharing the rent, utilities and grocery bills. They recently acquired a lot of land in the Philippines with the intention to build a house for their future.

    ·The applicant provided evidence which suggests that the parties jointly own a motor vehicle. They include a statutory declaration from the sponsor and a statutory declaration from the applicant made to Vicroads in May 2019 stating that they are both purchasing a 2001 car.  An earlier vehicle certificate of registration appears to indicate the applicant was the owner. A motor vehicle insurance renewal notification for 2019-2020 for a 2001 sedan was issued to joint names. Also provided was a motor vehicle insurance monthly instalment overdue notice issued to both names at an address on 3 May 2022.

    ·Evidence shows that the parties have a joint bank account. A letter addressed to the sponsor from a bank issued in March 2023 confirming the details of their joint bank account which was opened in January 2019. The account in joint names for the period from March to June 2019 provided shows few transactions.

    ·The applicant’s account statement for the period of January to June 2017 and March 2019 to June 2019. The transactions appear to show the applicant’s salary is paid to his personal account.

    ·In a fee reduction request made in June 2019, the applicant indicates that he earns about AUD700 per week after tax working as a security guard and the sponsor earns about AUD800 per week after tax.

    ·Two acknowledgment receipts for purchasing a lot in the Philippines by both parties, one issued on 8 July 2022 showing a payment of PHP50,000 and one issued on 20 February 2023 showing a payment of PHP35,000.

17. Having regard to this evidence, I accept that the parties have shared their finances and household expenses. I am also satisfied that the applicant and sponsor jointly own assets and have certain joint liabilities, and this gives weight to a finding that there is a de facto relationship.

18. Nature of the household

    Evidence before the Department:

    ·Nil (for the purposes of subclass 100 determination).

    Evidence before the Tribunal:

    ·A handwritten letter from the owner of a property of 10 June 2019 which confirms that the applicant and the sponsor have been tenants for a few years and pay a rent of AUD250.00 per week.

    ·An email from the applicant on 10 October 2020 informing the Tribunal that they have moved from their address to another address.

    ·Evidence showing that the parties were joint tenants of the property, including bond lodgement form, a bank cheque and a bond receipt issued to both parties dated 26 September 2019. Also provided was a joint water bill issued to both names dated 2 September 2022 for the address.

    ·Various documents showing that the parties have declared to various governmental and private organisations of their claimed addresses at relevant time, including various correspondences addressed to the parties separately or jointly. Documents provided include but not limited to a Medicare card, vehicle registration certificate, police check, payment of joint vehicle insurance notice, first pages of the applicant’s 2017 and 2018 tax returns and each of the parties’ driver licence.

19. Based on the above evidence, I am satisfied that the applicants have established a joint household and share domestic responsibilities. The living arrangements of the persons are reflective of a joint household and I give this weight. I am satisfied that with the passage of time there has been much interaction between them and they have been living together.

20. Social aspects of the relationship

    Evidence before the department:

    ·Nil (for the purposes of subclass 100 determination).

    Evidence before the Tribunal:

    ·In her statutory declaration dated 6 April 2023, the sponsor refers to that the parties have just had a nine-week holiday in the Philippines, during which they reunited with both sides of their families, relatives and friends.

    ·Evidence of joint travels to the Philippines in January to March 2017, August to September 2018 and December 2022 to February 2023 including flight booking confirmation, itineraries, boarding passes.

    ·Around 100 photographs depicting parties themselves or with others and in different settings including those taken during their holidays.

    ·Two witness supporting statements were provided to the Tribunal, one is from a friend signed on 6 June 2019 and the other one is from their housemate signed on 31 May 2019. Both attest the parties are in a genuine and loving relationship.

21. There is significant evidence of the applicant undertaking joint social activities. I also accept that there is evidence before the Tribunal that the relationship between the visa applicant and the review applicant is known to friends and family and is socially recognised.

22. Nature of the persons’ commitment to each other

    Evidence before the department:

    ·Nil (for the purposes of subclass 100 determination).

    Evidence before the Tribunal

23. The parties provided two statutory declarations from the sponsor dated 13 May 2019 and 6 April 2023 respectively, confirming that the parties remain in a genuine relationship. In her statutory declaration dated 6 April 2023, the sponsor states that the parties met in 2009 and they have been together for almost fourteen years - the applicant looks after her very well and provides her with moral and financial support and he further states that the applicant is a good father to his daughter.

24. It is evident from the above that the parties have a commitment to each other, taking to account a long duration of the relationship, living together over that long period, and companionship and emotional support that the persons draw from each other. I am satisfied that they see the relationship as a long term one.

25. Based on the information before me, and there is no evidence to the contrary, I am satisfied that the relationship between the applicant and the sponsor is genuine and continuing. The Tribunal is satisfied, based on the information provided and the detailed submissions, that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of others. Furthermore, there is no evidence to suggest that the applicant and the sponsor live separately and apart on a permanent basis.

26. At least two years have passed since the application was made. The applicant is the holder of a Subclass 309 (Partner (Provisional)) visa.

27. The applicant is at least 18; and the person with whom the applicant claims to be in a de facto relationship is at least 18.

    Conclusion

28. As already noted, the applicant, has provided cogent relevant evidence in support of his claim that he is in a genuine de facto relationship with the sponsor and has been in such a relationship from the time that they committed to each other. I am satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application.

29. The statements and documentary evidence provided, including those from the applicant and the sponsor, were detailed. I found them to be plausible and persuasive.

30. On the basis of the above I am satisfied that the requirements of s 5CB(2) are met at the time of this decision.

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 100 visa.

    DECISION

32. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

    ·cl 100.221 of Schedule 2 to the Regulations

    ·reg 2.03A

    Justin Meyer
    Member
    -  Extract from Migration Regulations 1994

    
    
    ATTACHMENT 

    1.09ADe 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).