Vergara (Migration)

[2023] AATA 689

Vergara (Migration) [2023] AATA 689 (7 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Maricel Vergara

REPRESENTATIVE:  Ms Thuy Vu

CASE NUMBER:  1900890

HOME AFFAIRS REFERENCE(S):          BCC2016/2806737

MEMBER:Donna Petrovich

DATE:7 March 2023

PLACE OF DECISION:  Melbourne

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

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

·reg 2.03A

Statement made on 07 March 2023 at 2:03pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – evidence of the financial and social aspects – applicant and sponsor have lived together for 7 years – de facto relationship has been registered under a relevant State or Territory law – decision under review remitted  

LEGISLATION
Migration Act 1958, ss, 5CB, 65
Migration Regulations 1994, rr 1.03, 1.09, 2.03A, Schedule 2, cls 820.211, 820.221

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

2. The applicant applied for the visa on 23 August 2016 on the basis of her relationship with her sponsor. 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 (Cth) (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 the evidence provided was sufficient to prove they were in a de-facto relationship of more than 12 months prior to the application for the partner visa.

4. The applicant appeared before the Tribunal on 22 February 2023 to give evidence and present arguments. The Tribunal received oral evidence from Bruno Daniele, the review applicant’s brother-in-law; Maryrose Daniele, the Review Applicant’s sister; and Samuel Graham, the sponsor’s son.

   Background

5. The applicant, Ms Maricel Vergaro, is a 43 year old citizen of the Philippines. The sponsor, Mr Alan Graham, is a 65 year old New Zealand Citizen who is an ‘eligible New Zealand Citizen’ for the purposes of r 1.03 of the Regulations.

6. The applicant and sponsor met on an online a dating site in February 2014.  They communicated online, and first met in person when the applicant came to Australia to visit between the dates 6 June 2014 and 7 December 2014. The applicant also returned to Australia on visitor visas in 2015 and 2016.  During the applicant’s visits to Australia the applicant and sponsor lived together at the sponsor’s home and developed their relationship from the applicants first visit living together continuously from 6 June 2014 and 7 December 2014.  Which is when the applicant and sponsor say that their relationship commenced.

7. The applicant lodged her Subclass 820/801 Partner visa on 23 August 2016 on the basis of her de-facto relationship with the sponsor. 

8. The applicant and sponsor registered their relationship on 17 October 2018 with Births Deaths and Marriages in Victoria. The applicant holds a Bridging Visa B associated with her application for a Partner visa and continues to live with the sponsor permanently in Seddon.  

9. The applicant does not work outside the home and performs home duties. She looks after the grandchildren of the sponsor one or two days per week. The sponsor works in construction and supports the applicant financially.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant and sponsor are in a genuine and continuing de-facto relationship and live together on a permanent basis.

    Whether the parties are in a spouse or de facto relationship

13. Clause 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 de facto partner of the sponsor who is an eligible New Zealand citizen.

    Are the parties in a de facto relationship?

14. '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).

15. 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.

    Financial aspects of the relationship

16. The applicant and sponsor live in a rental property in Seddon.  The Sponsor maintains a Commonwealth Bank account in his name which is used in the normal way to pay for living expenses including groceries, and utility bills. The applicant has her own bank account with the Bendigo Bank, which the Tribunal heard in evidence, is treated as a savings account by the couple. The sponsor makes regular deposits into this account.

17. The applicant is given cash by the sponsor for her personal expenses, the Tribunal heard that this has always been the way that they have managed their finances.

18. The Tribunal were advised in the Representatives submission that the applicant and sponsor own a Karaoke bar in the Philippines which the day to day operations are managed by the applicants sister.  

19. The Tribunal accepts the evidence provided of a pooling of financial resources and takes into account that the sponsor is employed outside the home and as such earns the income to support them both. It is under these circumstances that the Tribunal places some weight in favour of the applicant.

    Nature of the household

20. The Tribunal heard that whilst the sponsor and applicant have no children of their own, the applicant is involved with the care of the sponsor’s grandchildren and takes care of them 2-3 days per week.

21. The Tribunal heard that the couple spend the day on Sunday visiting family, doing their washing at the laundromat, and also doing their grocery shopping.  The applicant does the majority of the housework as she does not work outside the home. The applicant and sponsor have lived together continuously for the last 7 years.  

22. The applicant and sponsor are living in a rental property in Seddon and the Tribunal heard that they intend to live there indefinitely. They enjoy a Sunday roast dinner cooked by the sponsor and on the sponsor’s rostered day off they will spend time at home relaxing and spending time with the sponsor’s grandchildren.

23. The Tribunal places some weight in favour of the applicant based on the evidence which supports the applicant and sponsor’s living arrangements together.  

    Social aspects of the relationship

24. The Tribunal heard that the applicant and sponsor enjoy a quiet life together.  They socialise primarily with each other, but also with the sponsor’s adult children; they spend time with their grandchildren and share meals together.

25. The Tribunal received evidence from the applicant’s sister and her husband who appeared as witnesses at the hearing, and who told the Tribunal that they saw the applicant and sponsor every few weeks and gave evidence that they were aware of the relationship from its beginning. They told the Tribunal that they are a happy couple, who enjoy each other’s company.

26. The Tribunal received evidence in relation to other family members and their acceptance of the applicant and sponsor’s relationship, and the care that they take of each other, and also their care of other family members. 

27. The Tribunal heard that in December 2020 the applicant donated stem cell plasma to her sister who was suffering from Leukemia. The applicant travelled with the sponsor to the United Kingdom, where her sister lives, and the applicant and sponsor stayed in the United Kingdom together whilst the applicant underwent the procedure.  Due to COVID-19 border closures the applicant and sponsor remained in the UK until March 2021.

28. The Tribunal accepts the evidence of the commitment to each other and their extended family, caring for them and providing support on a day to day basis and also when there is a life threating illness. The Tribunal places significant weight in this regard.

    Nature of the commitment to each other

29. The Tribunal heard that the applicant and sponsor have been together for 8 years and have lived together as a couple for seven of those years. The applicant and sponsor maintain that their relationship commenced when the applicant came to Australia on 6 June 2014 and stayed with the sponsor until the 7 December, where they lived together as a couple. The applicant returned home to the Philippines and returned as soon as was possible to be with the sponsor.  They told the Tribunal that their relationship commenced at this time and they remained committed to each other with the applicant returning, until they were able to apply for a Partner visa on 23 August 2016.

30. They maintain that they were in a relationship from 6 June 2014, which would be well before the 12 month requirement for a de-facto relationship prior to application for Partner Visa.

31. The Tribunal has considered the applicants claim and accepts that there was a commitment in this case 12 months prior to the application.  The Tribunal is cognisant that the applicant and sponsor were not familiar with the process around obtaining the Partner visa, and continued their relationship perhaps erroneously with the applicant traveling to Australia and back to the Philippines until they were able to seek appropriate advice to enable them to proceed with a Partner visa.  Nevertheless, the evidence presented is consistent and credible that in this case they have maintained a committed de-facto relationship since they first lived together since the 6 June 2014.

32. The Tribunal places some weight in favour of the applicant in this regard.  

33. Whilst there is an age difference between them, they have formed a recognised commitment to each other, the Tribunal heard from the sponsor’s son that they shared humour and got along very well with each other and lived a quite and companionable life together. The Tribunal was provided evidence that they have looked after each other when faced with bereavement and that the applicant looked after the sponsor during his recovery from knee surgery.

34. The applicant and sponsor registered their relationship on 17 October 2018, and the sponsor proposed to the applicant on 9 May 2015 during the applicant’s 36^th birthday celebrations in front of family and friends and gave her a diamond engagement ring.

35. They told the Tribunal that they have not married yet due to Covid-19 because they wanted their friends and family in attendance and have planned for a Catholic wedding in the Philippines in December 2023.

36. The applicant and sponsor have lived together for 7 years and remained committed to each other for 8 years and have plans to be married in the future.  The Tribunal has considered all of the evidence and finds it to be consistent and credible and gives weight in favour of the applicant in this regard.

    Any other circumstances of the relationship

37. The Tribunal is unaware of any other circumstances

    Whether the parties are related by family

38. There is no evidence to suggest that the applicant and sponsor are related by family.

    Based on the evidence provided to the Tribunal at the hearing and prior to the hearing the Tribunal is satisfied that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of others; a genuine and continuing relationship; live together and not separately and apart on a permanent basis.

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

40. Therefore, the applicant meets cl 820.211(2)(a) or cl 820.221(1)(a).

    Are the additional criteria for a de facto relationship met?

41. 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 at least 18 years old.

42. 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.

43. The applicant has provided evidence that the relationship was registered with Births Deaths and Marriages on 17 October 2018 as the kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: reg 2.03A(5).

44. The applicant and sponsor maintain that their relationship commenced on 6 June 2014 when the applicant came to Australia and lived with the sponsor for 6 months as was the requirement of her visa conditions and then returned to the Philippines, returning to be with the sponsor in Australia and then applying for a Partner visa on 23 August 2016. The Tribunal accepts that the applicant and sponsor were in a de-facto relationship for 12 months prior to the application for partner visa.   

45. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

46. 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

47. 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

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

    ·reg 2.03A

    Donna Petrovich
    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).