Satorre (Migration)

[2019] AATA 4632

Satorre (Migration) [2019] AATA 4632 (11 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Maria Archebelle Satorre

VISA APPLICANT:  Mr Geronimo Prestouza

CASE NUMBER:  1714013

DIBP REFERENCE(S):  BCC2016/1096348

MEMBER:Stephen Witts

DATE:11 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

Statement made on 11 July 2019 at 1:54pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – genuine long-term spousal relationship – financial support provided – parties represent themselves to others as being married to each other – couple living apart in different countries – companionship and emotional support – mutual commitment to shared life to exclusion of others – credible witness – medical condition – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211, 309.221

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 on 14 June 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 11 March 2017 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (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.309.211 because the delegate was not satisfied that the first named visa applicant was a spouse of the sponsor. As the first named visa applicant did not satisfy the relevant primary criteria, the delegate found that the second named visa applicant could not meet the secondary criteria.

4. The review applicant appeared before the Tribunal on 11 July 2019 to give evidence and present arguments.

5. The Tribunal also received oral evidence from the mother of the sponsor, Isabel Satorre, and a friend of the sponsor, Mr Prado.

6. The review applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the first named visa applicant is the spouse of the review applicant within the meaning of s.5F(2) at the time of application and the time of decision.

   SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

   Whether the parties are in a spouse or de facto relationship

9. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen. The review applicant has provided a certificate of Australian citizenship dated 1 May 1980.

10. ‘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. Persons in a married relationship 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 live separately and apart on a permanent basis: s.5F(2)(a)-(d). 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 and the nature of the visa applicant’s and review applicant’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) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

12. The applicants have provided evidence that they were validly married on 9 August 2015  in the Philippines. This material is outlined in the delegate’s file.

13. 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).

    Are the other requirements for a spouse relationship met?

14. The Tribunal has considered the material presented in the delegate’s file and in the AAT file. This includes various statements made by the visa applicant and the review applicant both to the delegate and to the Tribunal, it includes various photographic evidence including at the wedding, it includes a number of money orders between the applicants, various extracts from social media indicating contact between the parties, and other statements made by various parties, including the applicant’s church, providing evidence in regard to the nature of the relationship between the applicants. It also includes some bank information and other social media records of contact between the applicants.

15. The Tribunal has also considered the evidence given by the applicants at the hearing, and the evidence given by the applicant’s witnesses, specifically the sponsor’s mother, and a close friend of the sponsor.

16. In particular, the Tribunal has considered the evidence presented by the applicant’s agent, Mr Nguyen, outlined in a statement given to the Tribunal (AAT file Folio 160-163). In this statement the applicant’s representative explained that the review applicant first met her husband face-to-face in the Philippines on 12 July 2015 after the relationship began via social media contact which began in October 2013. They then married in the Philippines on 9 August 2015. It was explained that the review applicant had a stroke in September 2014 and after this she experienced a seizure in January 2016 and another seizure again in May 2016. It was stated that her medical condition necessitated the need for ongoing medical intervention and that this has restricted her ability to travel. It was stated that she is currently living with her mother and son here in Australia. It was also stated that subsequent to her travel to the Philippines in 2015 she returned to the Philippines in 2017. Since then, she has not returned to the Philippines.

17. In regard to the financial aspects of the relationship it was stated that because of the review applicant’s current unemployment and financial situation receiving benefits from Centrelink that the couple’s financial consolidation into joint accounts has not been possible. However, the applicant has sent money to the visa applicant when possible. The review applicant has submitted evidence of money transfers to the Tribunal as evidence in this matter.

18. In regard to the sharing of house work and the financial aspects of the relationship it was stated that as the couple had been living apart in different countries such evidence has not been able to be established.

19. In regard to the social aspects of the relationship it was stated that in the review applicant’s visits to the Philippines she lived with her husband and they were actively involved in church and other social activities.

20. In regard to the nature of the relationship, it was asserted that the applicant’s doctor has advised her to refrain from taking long flights due to her history of stroke and seizures and that her financial situation has rendered it difficult for her to take regular trips to the Philippines.

21. At the hearing the Tribunal had a discussion with the review applicant regarding her relationship with her husband. The Tribunal acknowledged that the review applicant was validly married, and had been so since 2015, but questioned the applicant as to why she had only spent a total of 10 weeks, six weeks in 2015 after the marriage, and four weeks in 2017 with her husband in the Philippines. The applicant explained that she had a severe medical condition after having experienced various strokes in 2014 and seizures in 2016 and provided evidence to the Tribunal that she needed regular significant medication and medical re-examinations that meant that her ability to travel has been very limited, particularly since her last visit to the Philippines in 2017. She provided evidence that she needed constant medication and constant attendance at rehabilitation and that long flights were difficult for her. The Tribunal finds that the review applicant’s evidence as to her medical condition and the reasons why she found it difficult to travel back to the Philippines to see her husband was credible.

22. The Tribunal heard evidence from the review applicant’s nominated witnesses, her mother, here with her in Australia, and a friend who is part of her church group. Both witnesses gave evidence that the applicants were in a genuine spousal relationship of a long-term nature and the Tribunal found that the witnesses’ evidence was credible and convincing. Mr Prado gave evidence that he has known the visa applicant since the early 2000’s and that he shared time with him often back in the Philippines.

23. The Tribunal heard evidence from the visa applicant back in the Philippines. The applicant stated that he was in a genuine long-term relationship and wanted to come to Australia to assist his wife with her medical condition. The Tribunal found the applicant’s evidence credible.

    ·Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

24. The Tribunal finds that there are limited aspects of a financial nature to this relationship. However, it is acknowledged by the Tribunal, and it was stated in a submission and outlined by the applicant’s representative, that for various reasons it has been difficult for the applicants to demonstrate these aspects of their relationship. It is also noted by the Tribunal that the review applicant has provided several thousand Australian dollars to the visa applicant over the last few years. On this basis the Tribunal finds that the applicants have demonstrated some of the financial aspects criteria.

    ·Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

25. As stated above, the applicants have not been able to demonstrate a shared household arrangement except for the time they have spent together in the review applicant’s two visits to the Philippines where they lived together. The applicants could demonstrate this.

    ·Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

26. The applicants provided evidence that to the extent possible, considering they are living in separate countries, they have developed social aspects to their relationship particularly in regard to their shared Seventh-day Adventists activities both when were they were together in the Philippines and now they are apart. The Tribunal heard evidence from the review applicant’s close family friend who is also active in the church in regards to the shared activities. It is also clear to the Tribunal that the applicants do represent themselves to other people as being married to each other and that is the opinion of friends and acquaintances about the nature of their relationship.

    ·Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

27. The Tribunal heard evidence from the applicants in regard to their commitment to each other and accepts that they do have a degree of companionship and that the visa applicant does provide emotional support in so far as he is able to the review applicant during her time of significant illness.

    ·Any other circumstances of the relationship.

28. After consideration of the evidence the Tribunal finds that the applicants are in a genuine spousal relationship and have a mutual commitment to a shared life to the exclusion of others, and do have a genuine and continuing relationship and would wish to live together permanently.

29. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time this as these application was made and the time of decision.

30. Therefore the visa applicant meets cl.309.211 and cl.309.221.

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 309 visa.

    DECISION

32. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    Stephen Witts
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).