SERILLA (Migration)

[2020] AATA 1106

SERILLA (Migration) [2020] AATA 1106 (9 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nornel Cano SERILLA

CASE NUMBER:  1905026

HOME AFFAIRS REFERENCE(S): BCC2017/3429851 BCC2017/3429857

MEMBER:Steven Griffiths

DATE:9 April 2020

PLACE OF DECISION:  Adelaide

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(1) of Schedule 2 to the Regulations

Statement made on 09 April 2020 at 10:52am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – spouse – validly married in home country – financial, household and social aspects of relationship – nature of commitment – age difference – visa applicant’s children not included as secondary applicants – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65

Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cll 820.211(2), 800.221(1)

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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Mr. Nornel Cano Serilla, applied for the visa on 20 September 2017 on the basis of his relationship with his sponsor, Mrs. Aleja Serilla. 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 (the Regulations). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor.

4. The applicant appeared before the Tribunal on 27 March 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor, a daughter of the sponsor and a joint friend. The hearing was conducted with the assistance of a translator in the Tagalog and English languages.  

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were raised by the parties on holding a telephone hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration file, the Tribunal file, additional information provided by the applicant before and within 7 days of the hearing, and the oral evidence from the Tribunal hearing.

   ISSUE

8. The issue in the present case is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGROUND OF THE EVIDENCE

9. Mr. Serilla was born in Tagum, Davao, Philippines in 1983. His parents, born 1964 & 1962, are separated and 4 siblings, born 1987, 1990, 1991 & 1993, all live in the Philippines.  He was in a relationship from October 1998, has 2 children, born 2001 & 2007, his partner went to Japan and when she returned she had married another and had another child. His children lived with him, are cared for by his mother in the Philippines while he has been in Australia and he wishes to bring them to Australia. 

10. Mrs. Serilla was born in the Philippines in 1964. Her parents are deceased, and she has 2 brothers and a sister, born 1970 & 1974, who all live in the Philippines. She arrived in Australia on 15 May 1985 on a prospective wife visa, had married in April 1985, has 3 children, born 1984, 1986 & 1989, who are Australian citizens and live in Australia and she divorced in August 1994. She became an Australian citizen by grant on 24 July 1985.

    INFORMATION TO THE TRIBUNAL

11. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Joint names car registration, October 2019

    Joint names car insurance, October 2019

    Joint names car registration, January 2020

    Joint names ANZ account, transactions16/8/19 to 14/2/20

    Parties home rental agreement for 2 months from 20/3/20, not signed or dated

    Parties Certificate of Marriage, 18/1/15, Republic of the Philippines

    Applicant wage statement, 28/2/20 & 13/3/20, from Sterling NT

    Statement, Marvin Ogalescu, friend of parties, 28/3/20

    Statement, Marjorie Ranio, friend of parties, 29/3/20

    Statement, Jimmy Ocampo, friend of parties, 28/3/20

    Raine and Horne real estate, Lease of house in parties name, 20/3/20

    65 photos of the parties, including wedding, with family and friends, on holiday, socialising and recreation

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

12. Clauses 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. The Tribunal accepts the documented evidence of the sponsor becoming an Australian citizen on 24 July 1985.    

    Whether the parties are in a spouse or de facto relationship

13. ‘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).

14. 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 parties’ 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?

15. At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with an Australian Certificate of Marriage dated 15 January 2015. 

16. The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (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 expense

17. The Tribunal determines from the documented and oral evidence of the parties, confirmed independently, that at the time of the visa application and this decision, the parties did and do have joint ownership of a car, while not having joint ownership of real estate or other major assets.

18. The Tribunal determines from the documented and oral evidence of the parties, confirmed independently, that at the time of the visa application and this decision, the parties did not and do not have any joint liabilities.  

19. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, none of the parties had or has a legal obligation with regard to the other.

20. The Tribunal accepts the documented and oral evidence of the applicant being a part time cleaner.     

21. The Tribunal accepts the documented and oral evidence of the sponsor being a full time cleaner.       

22. The Tribunal accepts the documented and oral evidence, confirmed independently by the parties, of holding a joint names bank account in to which some of the wage income of the sponsor and all the income of the applicant is deposited, with electronic transfers made overseas to support the 2 children, who reside in the Philippines, of the applicant, and to assist with the living costs of the parties and determines, at the time of the visa application and this decision, the account to represent the pooling of financial resources for financial commitments and the sharing of day-to-day household expenses.

23. The Tribunal notes that the transactions provided by the applicant on the joint name bank account for period from 16 August 2019 to 14 February 2020 did not hold a balance of above $ 600.

24. The Tribunal accepts the oral evidence of the parties of the sponsor having a bank account in her name solely, to which the majority of her wage income is deposited and from which she makes payments of the loan in her name, for withdrawals of funds to assist with the household and living costs of the parties and for electronic transfers sometimes made to family members in the Philippines and determines, at the time of the visa application and this decision, to represent the sharing of day-to-day household expenses. 

25. The Tribunal accepts the oral evidence of the parties of a joint name bank account that they use for savings, with the money intended to be used in the future for seeking a home to rent by themselves, has approximately $ 1300 at the time of the hearing and represents the pooling for financial resources for major financial commitments. 

    Nature of the household aspects that must be considered include:-

    (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

26. The Tribunal accepts the photographic, documented and oral evidence from the parties of the sponsor having 3 adult daughters, with 7 biological and 1 adopted grandchildren, and that the parties are in regular contact with the families.

27. The Tribunal accepts the relationship of the parties to the children and grandchildren of the sponsor is close, with the parties regularly baby-sitting the grandchildren, and determines, at the time of the visa application and this decision the parties have joint responsibility for the care of support of the adult children and grandchildren.

28. The Tribunal accepts the photographic, documented and oral evidence from the parties of the application having 2 children, who lived with him after the applicant separated from his first wife and who lived with the mother of the applicant in the times he has lived in Australia since starting the relationship with the sponsor.

29. The Tribunal accepts the photographic, documented and oral evidence from the parties of the sponsor when in the Philippines since the commencement of the relationship has stayed with the children of the applicant, that the parties are in regular contact with the children and have a close relationship, that the parties provide financial support for the children, that the children address the sponsor as “mother” and that the parties will seek to bring the children to Australia to live and determines, at the time of the visa application and this decision, the parties have joint responsibility for the care and support of the children.

30. The Tribunal accepts the photographic, documented and oral evidence of the parties living arrangements and determines, at the time of application and this decision, they have and do live together in a rented home in Australia.

31. The Tribunal accepts the photographic, documented and oral evidence of the parties that they rent in Australia is on a shared basis with at least 2 others, noting the oral evidence of the parties, confirmed independently, of efforts made over the last 2 years by the parties with the real estate / property management company, Raine and Horne, for the name of the visa applicant to be included and the documented evidence of the inclusion on 28 March 2020 of the visa applicant.    

32. The Tribunal accepts the documented, photographic and oral evidence, confirmed by the parties independently, on the roles each undertakes in the household, and determines, at the time of application and this decision, the parties share the responsibility for housework.

    Social aspects of the relationship that must be considered include:-

    (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

33. The Tribunal accepts the photographic, documented and oral evidence and determines at the time of application and this decision that the parties were married in the Philippines on 15 January 2015, with the adult children and grandchildren of the sponsor, the children of the applicant and family and friends of both parties present, and represent themselves to other people at all times as being married to each other.

34. The Tribunal accepts the documented, photographic and oral evidence of family and friends of the parties and determines, at the time of application and this decision, the opinion of family, friends and acquaintances as being supportive of the relationship and marriage.

35. The Tribunal accepts the photographic, documented and oral evidence, confirmed by the parties independently, and determines, at the time of application and this decision, the parties plan and undertake joint social activities.

    Nature of the commitment to each other that must be considered include:-

    (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.

36. The Tribunal accepts the documented and oral evidence of the parties that the divorce of the sponsor from her first husband occurred in 1994.  

37. The Tribunal accepts the oral evidence of the parties that the applicant separated from his first wife occurred after she had become involved with another man in Japan during a 6 month work position and had a child with him, with the children of the applicant continuing to live with him as he has been the primary care giver.

38. The Tribunal accepts the oral evidence of the parties first meeting in June 2011 in the Philippines, with the relationship developing to a commitment to each other within a short time and the parties marrying on 15 January 2015. 

39. The Tribunal accepts the photographic, documented and oral evidence of the parties living arrangements and determines, at the time of application and this decision, they have lived together for approximately 935 days since July 2011, in the Philippines at the home of the applicant and in Australia in a rented home.

40. The Tribunal accepts the photographic and oral evidence of the parties on the issues they have dealt with and determines, at the time of the visa application and this decision, that a high companionship and emotional support is provided by the parties to the other.

41. The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, they have had and continue to have an ongoing commitment to each other and see the relationship and marriage as being long-term.

    Any other circumstances of the relationship

42. The Tribunal accepts the oral evidence of the parties of the sadness of living apart from the 2 children of the applicant has placed on them and the desire they have for the children to live in Australia with them.

43. The Tribunal notes the oral evidence of the applicant that he believed the 2 children were part of his partner visa application and were being considered as secondary applicant for this review, and was noticeably upset when advised during the hearing that this was not the case.

44. The Tribunal notes the financial challenge the visa process has been to the parties and the oral evidence of the sponsor and daughter of the sponsor that it had not been possible to include the children in the visa process due to costs, with this also impacting on the inability of the parties to seek migration agent assistance and resulted in areas of evidence often provided as part of visa refusal reviews were not known at the parties.

45. The Tribunal notes the age difference of the parties was raised by the parties during the hearing, with the sponsor 55 years old and the applicant 36 years old, with the Tribunal considering this in the context of the parties having been in a relationship since July 2011 and places no weight on the matter.

46. The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.

47. The Tribunal accepts that the parties have been in a relationship since July 2011, married on 15 January 2015 and determines, at the time of the application and this decision, the parties live together.  

48. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and this decision. The Tribunal is further satisfied that the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.

49. The applicant therefore meets cl.820.211(2)(a). The Tribunal accepts the applicant was sponsored and therefore meets cl.820.211(2)(c), and as he was the holder of a substantive visa at the time of application, cl.820.211(2)(d) does not apply. Accordingly, the applicant meets cl.820.211(2). The applicant continues to meet these requirements at the time of decision and therefore meets cl.820.221(1). 

50. 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

51. 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(1) of Schedule 2 to the Regulations

    Steven Griffiths
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).