Sixto (Migration)

[2024] AATA 814

Sixto (Migration) [2024] AATA 814 (11 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Grace Sixto

CASE NUMBER:  2000043

HOME AFFAIRS REFERENCE(S):          BCC2017/4673993

MEMBER:Wan Shum

DATE:11 April 2024

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(1) of Schedule 2 to the Regulations

·cl 820.221(1)(a) of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 11 April 2024 at 12:51pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – relationship registered after visa application made – age difference and personal circumstances – applicant’s child remains in home country and is not party to application – sponsor’s plan to relocate – consistent and reasonable evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 5F, 65
Migration Regulations 1994 (Cth), rr 1.09A(3), 2.03A, Schedule 2, cls 820.211(2)(a), 820.221(1)(a)

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

2. The applicant made a combined application for the Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas on 7 December 2017 on the basis of her claim to be the de facto partner of Mr Anthony Kean. At that time, Class UK contained Subclass 820 (Partner) and Class BS contained Subclass 801 (Partner).

3. On 27 December 2019, the delegate refused to grant the Subclass 820 visa on the basis that the evidence was not sufficient to demonstrate that, at the time of application, the applicant is the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Act. The delegate found that the applicant did not satisfy cl 820.211(2)(a) and therefore did not meet cl 820.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The Subclass 801 visa was also refused.

4. The applicant appeared before the Tribunal on 25 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Anthony Kean, the sponsor, and Mr Darren Kean, the sponsor’s son.

5. For the reasons that follow, the Tribunal has concluded that the matter should be remitted for reconsideration.

   BACKGROUND

6. The applicant is a national of the Philippines born in July 1991. She travelled to Australia with the sponsor in September 2017 as the holder of a visitor visa.

7. The sponsor was born in Australia in November 1961. He was previously married to Ms Anne Kean in February 1986 and has 3 children from that marriage. That marriage ended in divorce in October 1998. In October 2004, he married Ms Andrea Silva Robbins and sponsored her for a Partner visa. She was granted a Partner visa in November 2004 but then departed Australia and withdrew the application in June 2005. The marriage ended in divorce in October 2009.

8. The applicant and sponsor claim that their de facto relationship commenced on 23 October 2015.

9. The applicant made a combined application for the Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa in Australia on 7 December 2017.

10. In order to be granted the Partner (Temporary) (Class UK) visa, the applicant must satisfy the applicable visa criteria set out in Part 820 of Schedule 2 to the Regulations which includes cl 820.211. In this matter, the delegate found that the applicant did not satisfy clauses 820.211(2)(a) and 820.221 of Schedule 2 to the Regulations.

11. These criteria relevantly require that the applicant is the spouse or de facto partner of the sponsor, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen at time of application and at time of decision respectively. In the present case, the applicant claims to be the de facto partner of Mr Anthony Kean, who is an Australian citizen by birth. For the purposes of this application, he is the sponsor.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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).

    Are the parties in a de facto relationship?

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 this case, the delegate did not consider that the evidence was sufficient to demonstrate that they have a mutual commitment to a shared life and are in a genuine and continuing relationship at time of visa application and at time of their decision.

15. The applicant has provided additional information on review including a relationship certificate and other evidence relevant to the matters contained in reg 1.09A(3).

16. The additional information presented to the Tribunal consist of documents and photographs of the parties together and with others as evidence of their ongoing and continued relationship. They gave consistent evidence as to how their relationship developed and their current circumstances.

17. In terms of each of the matters in reg 1.09A(3), the Tribunal considers the evidence reflects that the applicant and sponsor are in a de facto relationship. While there is limited evidence of joint ownership of assets and joint liabilities, their evidence of the manner in which they share day-to-day household expenses was consistent and in the Tribunal’s view is reasonable taking into account that the sponsor is 30 years older than the applicant, had been running a business and had purchased the townhouse where they live, while the applicant was in her mid-20s when they first commenced their relationship and was living with her parents and brother in Manila with her son who was born in October 2013. Both gave consistent evidence about the sponsor having sent money to support the applicant once they became boyfriend-girlfriend in October 2015. He also said that he paid for the accommodation and expenses when they were living in Dipolog together as a couple, on both occasions. In Australia, he pays the mortgage and they share the bills and grocery expenses. They both gave consistent evidence regarding the applicant sending money home to her parents to support them and her child. Given their financial circumstances prior to living together and now, the Tribunal considers that their financial arrangements reflect that they are in a de facto relationship as claimed.

18. In terms of the nature of the household, they gave consistent evidence regarding their living arrangements and how the housework is divided between them, with the applicant doing most of the housework and cooking. They have been living together in a two-bedroom townhouse located at The Entrance Road, The Entrance since the applicant’s arrival in Australia. For about 4 years, Mr Darren Kean, the sponsor’s son, lived with them. He moved out last year and gave evidence consistent with theirs on the household. There are no children of the relationship but the applicant has a child who remains in the Philippines with her parents. They both gave evidence that when they first spent time together in the Philippines in October 2015, the applicant had the support of her parents to take care of her young child so that she could live with the sponsor in Dipolog for a couple of months and again for a further 12 months from September 2016. The sponsor gave his reasons for requesting that her child not stay with them during the period he was living with the applicant in the Philippines in a frank manner and it appears that the applicant and her parents were agreeable to that arrangement. Both parties gave consistent evidence regarding the reasons for not including her child in the current application and talked about the sponsor’s desire to relocate to the Philippines in the next few years, which appeared to be the reason why they had not made any arrangements for the applicant’s child to come to Australia yet. Based on their evidence, the Tribunal accepts that, while the applicant is in regular contact with her child and has returned to the Philippines on her own once to visit, there are no immediate plans for her child to join them in Australia and the parties have discussed this situation and the applicant is accepting of the current arrangement. Their evidence was consistent and reflects that they are in a de facto relationship with each other.

19. In terms of the social aspects of the relationship, aside from the statutory declarations given with the visa application, the Tribunal has been provided with additional statutory declarations and Form 888s from their friends and relatives who state that they regard their relationship to be genuine and committed. In addition, the Tribunal has the benefit of the evidence of Mr Darren Kean at the hearing who said that he lived with them for around 4 years at The Entrance and stated that he believes that their relationship is genuine. In terms of their activities, they like to spend time together, with photographs of them in different parts of NSW and both stated that they like eating. There are also numerous photographs with the applicant’s friends and the sponsor’s family which reflect that they socialise with others as a couple. The evidence reflects that the parties represent themselves to other people as being in a de facto relationship with each other.

20. Regarding the nature of the persons’ commitment to each other, the parties claim to have first met in 2012 but that they only began more regular communication some time later when they met up again during one of the sponsor’s trips to the Philippines in September 2015 and the sponsor said that the applicant had indicated to him in October that she wanted to be with him. The sponsor said that after he returned to Australia, he began sending money to the applicant and that the reason he returned to the Philippines in February 2016 was to spend 3 months with her. They both gave evidence that they stayed in Dipolog without her child who remained in Manila with her parents. The sponsor said he then decided to return for another 12 months from September 2016 to see if it would work between them and they lived together in the same place, again away from her family, until September 2017, when the applicant came with the sponsor to Australia as the holder of a visitor visa. More recently, they have registered their relationship under the Births, Deaths and Marriages Registration Act (NSW) 1995 on 15 June 2023. The sponsor explained that he had not known that this was necessary for the application until they engaged lawyers to assist. They decided not to continue with the lawyers due to costs.

21. While the supporting evidence of the time they spent living together in the Philippines is limited to a few photographs of the parties socialising with others and a couple of supporting statements, the Tribunal accepts that they were living together based on their oral evidence. Their evidence of the development of the relationship, and the continuation of their relationship to date, as well as the evidence from the sponsor’s son and others, tends to reflect in the Tribunal’s view that they regarded the relationship as serious and a long-term one at the time of the visa application and that they continue to be committed to each other.

22. Having regard to the evidence before it, the Tribunal finds that the parties have a mutual commitment to shared life to the exclusion of others and that their relationship is genuine and continuing. In terms of whether they live together and not separately and apart on a permanent basis, they claim to have lived together in the Philippines for about 3 months from March to May 2016 and then for a further 12 months from September 2016 prior to the applicant’s travel to Australia. Since then, they have each declared that they lived at the same address at The Entrance, and the Tribunal accepts that they have lived together continuously other than for a 17-day trip that the applicant made to the Philippines last year. The Tribunal finds on the evidence before it that they were in a de facto relationship both at the time the visa application was made and at the time of this decision. This means that s 5CB(2)(a) to (c) are met.

23. The parties are not related by family and s 5CB(2)(d) is met.

24. On the basis of the evidence before it, the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time of application and as at this decision.

25. Therefore, the applicant meets cl 820.211(2)(a). The applicant held a Subclass 600 visa valid until December 2017 and met the requirements of cl 820.211(2)(d). The form ‘Sponsorship for a partner to migrate to Australia’ was completed with Mr Anthony Kean’s details and submitted on 14 April 2018. As the applicant was over 18 at the time of application, the Tribunal finds that cl 820.211(2)(c) was met. Given this, the applicant meets cl 820.211(2) and, as she did not hold a Subclass 771 (Transit visa), the applicant meets cl 820.211(1).

26. The Tribunal further finds that at the time of this decision, cl 820.221(1)(a) is met.

    Are the additional criteria for a de facto relationship met?

27. 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 each 38 so were at least 18 years old.

28. 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.

29. The applicant has provided evidence that the relationship was registered under the Births, Deaths and Marriages Registration Act (NSW) 1995 on 15 June 2023 as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: reg 2.03A(5). While the registration occurred after the visa application was lodged, it appears that there is not legal requirement for the registration to have occurred prior to that date. It therefore appears that the 12 month requirement does not apply. Given this, the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

    Conclusion

30. 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

31. 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(1) of Schedule 2 to the Regulations

    ·cl 820.221(1)(a) of Schedule 2 to the Regulations

    ·reg 2.03A

    Wan Shum
    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).