Truebody (Migration)

[2024] AATA 2831

Truebody (Migration) [2024] AATA 2831 (25 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Neil Paul Truebody

VISA APPLICANTS:  Mrs Angelina Ordista Truebody
Ms Pia Ordista Arriola

REPRESENTATIVE:  Mr Jeffrey Troy White (MARN: 1464180)

CASE NUMBER:  2103223

DIBP REFERENCE(S):  BCC2018/4252971

MEMBER:Ann Duffield

DATE:25 July 2024

PLACE OF DECISION:  Canberra

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

·cl 309.211(2)(a) of Schedule 2 to the Regulations

·cl 309.221(1)(a) of Schedule 2 to the Regulations

Statement made on 25 July 2024 at 11:59am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – significant additional information and documentation – joint purchase of property and lengthy residence in home country – sponsor’s permanent residency there – member of family unit adult child with special needs – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 309.211(2)(a), 309.221(1)(a)

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 3 February 2021 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 30 September 2018 on the basis of their relationship with their 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(2)(a) because they were not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act.

4. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Migration Act.

   Whether the parties are in a spouse or de facto relationship

7. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

8. ‘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            reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP[2017] FCAFC 206.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence, the parties were married to each other in the Philippines on 1 September 2017 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?

10. The Tribunal has had regard to the department’s file along with significant additional information provided to the Tribunal which was not available to the delegate at the time of their decision, including the following:

    a.Statement from the sponsor dated 16 April 2024

    b.Marriage certificate, wedding, and other photos of the couple together and with others in various places

    c.Copy of a Power of Attorney investing the applicant with powers in relation to mortgage, banking and financial matters on behalf of the sponsor dated 27 July 2018

    d.Copies of documents in relation to a mortgage, title, and deed of sale of property purchased in the Philippines jointly by the applicant and the sponsor dated July 2018

    e.Evidence of a joint bank account in both parties’ names

11. The Tribunal has considered the 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.

12. The couple have purchased property together in 2018 in the Philippines. The applicant has spent a significant amount of time living there with the applicant, most recently he departed Australia in March 2020 and has not returned. They have a joint bank account in the Philippines which they opened in 2018. The sponsor has given the applicant power of attorney over his financial matters including the property they share. They paid the mortgage off in 2022. They also have a rental property which they have also recently paid off.

13. The Tribunal is satisfied that the financial aspects of the relationship support a finding that they have a mutual commitment to a shared life together and do not live separately and apart.

14. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

15. The couple met for the first-time face to face in 2016 and were married in September 2017. They have been living together since that time and purchased a home together in 2018. Because of difficulties obtaining a visa for the applicant, the sponsor himself obtained permanent residency in the Philippines to remain with the applicant.

16. The sponsor became unemployed in 2023 because of health issues and has since then been primarily responsible for maintaining the home and sharing the housework.

17. The applicant has a special needs daughter, Pia, who has cerebral palsy and related conditions including epilepsy, born in June 1993 (31 years old) who also lives with the couple and the sponsor has said that he, along with the applicant, jointly care for the young woman, although at times she also has the assistance of her uncle, the applicant’s brother. Pia is able to walk with some assistance and her epilepsy has been controlled.

18. The Tribunal is satisfied that the nature of the couple’s household supports a finding that they live together as spouses and that their marriage is genuine and continuing.

19. The Tribunal has considered the 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.

20. The couple have provided photographs of themselves together and with others and have a social life that revolves around the church which they attend twice a week together. They are recognised as a married couple by the Church and their friends. They also socialise with family in the Philippines.

21. The Tribunal is satisfied that the social aspects of the relationship support a finding that they have a mutual commitment to a shared life together and do not live separately and apart.

22. The Tribunal has considered the 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.

23. The couple have been together for eight years since 2016 and married since 2017. They have purchased property together in the Philippines and the sponsor has obtained permanent residency in the Philippines because of his marriage to the applicant which has been recognised by the Philippines government. The couple share in the care of the applicant’s special needs daughter.

24. The sponsor relocated to the Philippines in 2020 so that he could live fulltime with his wife. They have been committed to their marriage and each other since 2017 and now would like to return to Australia to live in their retirement.

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

26. Therefore, the visa applicant meets cl 309.211(2)(a) and cl 309.221(1)(a).

27. 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

28. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.211(2)(a) of Schedule 2 to the Regulations

    ·cl 309.221(1)(a) of Schedule 2 to the Regulations

    Ann Duffield
    Senior 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).