Ventura (Migration)

[2019] AATA 3809

Ventura (Migration) [2019] AATA 3809 (7 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Joshiel Ventura

CASE NUMBER:  1726916

HOME AFFAIRS REFERENCE(S):           BCC2015/2691830

MEMBER:P. Maishman

DATE:7 February 2019

PLACE OF DECISION:  Perth

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)(a) of Schedule 2 to the Regulations

Statement made on 07 February 2019 at 3:44pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – relationship ceased – statements provided – spousal commitment at time of application – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 820.211

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 and Border Protection 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 applied for the visa on 14 September 2015 on the basis of her relationship with her sponsor, Mr Michael Saunders. 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. 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.820.211(2)(a) because the delegate was not satisfied that, at the time of application, the applicant was the spouse or de facto partner of the sponsor.

4. In reaching its 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal had access to the Department’s file papers. The Department’s file papers contain the visa application and the documents provided to support that application. The Tribunal had regard to the documentary evidence provided by the applicant and her sponsor contained in the Department’s file papers.

7. The applicant provided the Tribunal with a copy of the delegate’s decision and her application for a review. The applicant made a statement about why she thought the decision was wrong.

8. The application history is summarised in the delegate’s decision record as follows. The applicant and sponsor claim to have known each other since 20 July 2014. The applicant was in Australia from 26 November 2014 as the holder of a visitor visa that was valid until 15 November 2015. The applicant and sponsor were married on 6 June 2015 and had a son born on 15 October 2015. The applicant applied for a Partner visa on 14 September 2015. On 20 April 2016, the sponsor telephoned the department to say the relationship had broken down. On 26 April 2016, the applicant emailed the department to say that she and the sponsor had separated and she had moved to Port Hedland with her son after living  in a refuge for a few days.

9. The applicant provided her reasons for claiming the delegate’s decision was wrong with her review application:

   I do believe that I have right to remain here in Australia, most importantly for my 2-year-old son. Based on the decisions of my visa, there has been a mistake, first of all I am the one who reported the separation in the Department of Immigration and asked for the advice on what to do. They advised me that I had to provide and fill out the application form about the changes in status of my relationship with my sponsor, and so after I had spoken with them I completed and they received it after a couple of days. Also the case officer was not satisfied during the relationship with my sponsor that she didn’t believe that I was in long-term relationship. I, as a partner sacrificing everything moving to one country to another and leaving my family back in Philippines with my son and didn’t know what life exactly was waiting for me here in Australia. All I know was I was in love with Michael and will do everything for him and have a family with him but I never wished to end our relationship during my relationship with my sponsor I just could not bear how he changed so much after our marriage and during my pregnancy with our son. His personality had changed and he got so abusive physically and mentally and so I had no choice but to leave him. I also believe that Australian government will be fair on my side as I never intended to wish to have a broken marriage, since I have been in Australia I have never broken any law I paid my tax when I was working and I have never been a burden to the government. All I am fighting for is my rights to be able to be with my son.

10. The issue in the present case is whether at the time of application the applicant was the spouse of the sponsor.

    Whether the parties are in a spouse or de facto relationship

11. 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. In the present case, the applicant claims to be the spouse of the sponsor Mr Michael Saunders. The Department’s file contains a copy of the sponsor’s passport confirming he is an Australian citizen.

12. ‘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 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?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The delegate’s file contains a certified copy of a marriage certificate signed by the Western Australian Registrar of Births, Deaths and Marriages showing that the applicant and the sponsor were married on 6 June 2015. 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’s assessment of the documentary evidence provided to the Department was different to the delegate’s. The Tribunal was concerned with assessing the evidence to make a determination about the relationship at the time of the Partner visa application.

15. The Tribunal considered the financial aspects of the applicant and sponsor's relationship. There is no evidence of joint ownership of assets. A letter dated 2014 signed by Mr Saunders (folio 212) undertakes that the sponsor would take care of the applicant and all her required needs. The applicant and sponsor were joint signatories as tenants on a residential tenancy agreement (folio 114) for a 12-month period from 6 March 2015 to 5 March 2016. The tenancy agreement was signed by both the applicant and sponsor on 25 February 2015 and limited the maximum occupants to no more than two persons. The sponsor’s Westpac account was recorded as the account to be debited for rent. The statements of the sponsor’s Westpac account held on the Department’s file (folio 118) only show transactions from 8 May to 19 May 2014 and are insufficient to demonstrate money being used for household expenses or a pooling of resources.

16. The Tribunal finds that the sponsor accepted the responsibility of financially supporting the applicant, which it takes to be a sharing of expenses and a pooling of resources. There is no evidence of the parties entering into a major financial commitment. The applicant and sponsor were jointly liable for the payment of rent on their residential property and the sponsor took responsibility to ensure the rent was paid by providing his account details. The Tribunal considers the financial arrangements of the applicant and sponsor to be indicative of a married relationship.

17. The Tribunal considered the nature of the applicant and sponsor’s household. The Department’s file contains correspondence (folio 119, 131, 167, 168) addressed to the applicant at the premises for which she and the sponsor entered into a joint tenancy agreement. The applicant and sponsor’s marriage certificate shows their place of residence to be the premises for which the applicant and sponsor entered into a joint tenancy agreement. The sponsor’s Newborn Child Declaration, stamped by the Department of Human Services on 22 October 2015 (folio 169), declares the applicant to be his partner and their postal address to be the premises for which the applicant and sponsor entered into a joint tenancy agreement. 

18. There is no evidence that at the time of claim the applicant and sponsor were responsible for the care and support of any child. There is no evidence about the sharing of the responsibility for housework. The Tribunal notes that the tenancy agreement restricts the number of tenants in the property in which the applicant and sponsor reside to be no more than two people. The Tribunal notes that at the time of the visa application the applicant and the sponsor were married and the applicant was some months pregnant. The Tribunal finds the nature of the applicant and sponsor’s household at the time of the visa application is indicative of a couple in a married relationship.

19. The Tribunal considered the social aspects of the relationship. The Department’s file contains a statutory declaration from Mr Joshua Matthews dated 25 August 2016. Mr Matthews has known the sponsor for 20 years and the applicant for one year. Mr Matthews states he and the applicant communicated on Skype when the sponsor and the applicant commenced their online relationship. Mr Matthews first met the applicant when she came to Australia in November 2014. He was best man at their wedding. He states that they are genuinely in love and devoted and committed to each other and very excited to soon be parents. Mr Matthews says he sees the applicant and sponsor at least once a month and they often invite friends and family to their home to enjoy the applicant’s meals and to sing karaoke.

20. Mr Gordon de Ramirez provided a statutory declaration dated 10 September 2015. He says he has known the sponsor for five years and the applicant for one year. Mr Ramirez says he socialises with the applicant and sponsor most weekends and has watched their relationship grow. Mr Ramirez was of the view that the applicant and sponsor had a genuine relationship and were happy and content with each other. The Department’s file contains a number of photographs showing the applicant and sponsor in various social situations with family and friends. There are a number of photographs of the applicant and sponsor’s marriage.

21. The sponsor represented to the Department of Human Services that the applicant was his partner.

22. The Tribunal is satisfied that at the time of the visa application the applicant and sponsor represented themselves to others as being married and other people were of the opinion that the applicant and sponsor were in a spousal relationship. The Tribunal accepts the evidence of the declarants that the applicant and sponsor socialise at their home together. The Tribunal finds the social aspect of the applicant and sponsor’s relationship at the time of the visa application to be indicative of a couple in a married relationship.

23. The Tribunal considered the nature of the applicant and sponsor’s commitment to each other. The delegate’s decision outlines that the applicant and sponsor claim to have first met over the internet in July 2014. The applicant arrived in Australia on 26 November 2014 and the applicant and sponsor married on 6 June 2015. The applicant and sponsor are the parents of a son born on 15 October 2015. The sponsor contacted the Department on 20 April 2016 to say that his relationship with the applicant had broken down and he considered the applicant had had a child in order to obtain the visa. The applicant told the Department on 26 April 2016 that she had separated and she was concerned that her son was an Australian citizen and she would lose him if she was sent back home.

24. The Tribunal accepts the applicant’s written submission that she demonstrated her commitment to the relationship by leaving her home country to come to Australia, not knowing what life held for her here. She did not want to have a broken marriage.

25. The Tribunal has taken into account handwritten notes contained on the Department’s file that appear to have been provided on behalf of Nola Marino, the Federal Member for Forrest, on behalf of her constituents ‒ the sponsor and his father. The Tribunal gives little weight to these documents as it is unclear as to the source of the messages. There is no signature, date, or identification of the authors. Further, the Tribunal considered the handwritten documents were indicative of an acrimonious breakup of a relationship however the documents shed little light on whether the relationship between the applicant and the sponsor was genuine and continuing at the time the visa application was made.

26. The Tribunal is persuaded by the evidence held on the Department’s file, particularly from the sponsor’s long-term friends and work colleagues, Mr Matthews and Mr de Ramirez, that the applicant and sponsor were committed to their relationship, they did provide companionship and emotional support to each other and, at the time of the visa application, expected their relationship to be a long-term one. The Tribunal finds the applicant and sponsor’s commitment to each other at the time of the visa application to be indicative of a couple in a spouse relationship.

27. The Tribunal finds that at the time of the visa application the applicant and sponsor had a mutual commitment to a shared life as a married couple to the exclusion of all others; the relationship between the applicant and the sponsor was genuine and continuing; and they lived together as required by s.5F(2)(b)-(d) of the Act.

28. 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.

29. Therefore the applicant meets cl.820.211(2)(a).

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(2)(a) of Schedule 2 to the Regulations

    P. Maishman
    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).