Villarta (Migration)

Villarta (Migration) [2019] AATA 6386 (1 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Maria Bella Villarta
CASE NUMBER:  1831868
HOME AFFAIRS REFERENCE(S):           BCC2016/3327982
MEMBER:Steven Griffiths
DATE:1 November 2019
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
·r.2.03A

Statement made on 01 November 2019 at 4:47pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto partners – previous Philippines Marriage Contract – current marriage not valid – pooling of financial resources – evidence of cohabitation – mutual commitment to a shared life as a de facto couple – decision under review remitted
LEGISLATION
Marriage Act 1961
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; 1.09, 1.15, 2.03
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant, Mrs. Maria Bella Villarta, applied for the visa on 7 October 2016 on the basis of her relationship with her sponsor, Mr. Geoffrey Norman Uren. 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.
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.
The applicant appeared before the Tribunal on 23 October 2018 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the sponsor.
The applicant was represented by her registered migration agent, who attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Immigration file and Tribunal file, including additional information provided to the Tribunal prior to the hearing and the oral evidence from the Tribunal hearing.
ISSUE
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
Ms. Villarta was born in Carcar, Cebu, Philippines in 1966. Her parents, born 1939 & 1946, live in the United States, as does a sister, born 1967, with another sister, born 1975, living in Japan, and a sister, born 1969, and two brothers, born 1970 & 1972, living in the Philippines. She has a daughter, born in 1991. She married in December 1991 in Cebu, Philippines, before separating after 3 months and never hearing from the husband again. She was in a relationship with another from January 1995, with a daughter and son, born 1997 & 1999 respectively, before separating in April 2005. Her children live in the Philippines. She visited Australia from May to July 2015, and has been in Australia since 10/3/16.
Mr. Uren was born in Australia in 1949. His parents are deceased and he has a brother and two sisters, born 1951, 1956 & 1964, all living in Australia. He married in March 1987 and they had a daughter before divorcing in December 1996. He married in June 2013 and divorced June 2016.
INFORMATION TO THE TRIBUNAL
Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-
Migration Agent submission
77 photos – family, friends, wedding – Philippines & Australia
Flight arrangements, sponsor & applicant
Money transfer – 25/5/15 $ 145.43, 24/9/15 $ 93.28, 30/10/15 $ 122.51, 6/10/15 $ 464.30, 17/10/15 $ 152.37, 23/10/15 $ 151.83, 23/4/15 $ 327.65, 15/12/15 $ 192.74, 30/11/16 $128.00, 24/6/16 $ 185.00, 15/6/16 $ 220.00, 27/5/16 $ 222.00, 28/10/16 $ 150.00, 3/11/16 $ 150.00, 18/10/16 $ 260.00, 20/9/16 $ 82.00
Sponsor and applicant proof of residential address
Wedding invitations to parties – August 2016, October 2018
Applicant training records – March 2017, December 2016
People’s Choice Credit Union, joint names account, January 2017 to January 2018 and September to December 2018 and February 2019 to April 2019
Applicant employment contract, May 2017
Rental agreement, both parties, March 2017
Rental tenancy history, joint names, March 218 to June 2019
Money transfer – sponsor and applicant to applicant children – 7/1/17 $ 200.00, 25/1/17 $88.00, 3/2/17 $ 75.00, 8/2/17 $ 35.00, 16/2/17 $ 308.00, 25/2/17 $ 139.00, 14/3/17 $260.00, 15/3/17 $100.00, 21/3/17 $ 168.05, 3/4/17 $ 456.00, 11/4/17 $ 90.00, 19/4/17 $ 200.17, 26/4/17 $76.00, 4/5/17 $600.00, 19/5/17 $ 772.00, 16/6/17 $ 597.05, 29/6/17 $ 270.00, 14/7/17 $602.00, 19/7/17 $334.00, 27/7/17 $ 506.00, 17/8/17 $ 325.00, 24/8/17 $ 431.00, 6/9/17 $700.00, 21/9/17 $ 550.00, 6/10/17 $ 1008.00, 14/10/17, 19/10/17 $ 758.00, $400.00, 3/11/17 $ 668.00, 20/11/17 $ 300.00, 4/12/17 $ 297.00, 15/12/17 $ 400.00, 8/9/18 $ 535.00, 2/11/18 $ 523.00, 14/12/18 $723.00, 27/12/18 $ 492.52, 11/1/19 $ 277.00, 27/2/19 $ 548.00, 21/3/19 $ 595.00
Applicant Statement – 9/10/19
Sponsor Statement – 9/10/19
Applicant payroll slips – 2018 & 2019
Sponsor Will – May 2018
Is the sponsor an Australia citizen, an Australian permanent resident or an eligible New Zealand citizen?
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 that the sponsor is an Australian citizen by birth.
Whether the parties are in a spouse or de facto relationship
the issue before the Tribunal is whether the visa applicant is the spouse or de facto partner of the sponsor as defined by s.5F of the Act or s.5CB of the Act.
‘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.
'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).
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 r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
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 as evidence of their marriage on 31 August 2016.
The Tribunal noted, from the file of the Department of Immigration during its investigation on the application, a Philippines Marriage Contract, dated 21 December 1991, between the applicant and Mr. George White, born in England in 1937 and a citizen of Canada.
The Tribunal put this information to the applicant, sponsor and Agent as Adverse Information, under the provisions of s.359A, noting the Marriage Act 1961 requires that marriages are void is either of the parties, at the time of the marriage, is lawfully married to someone else. The applicant was asked if an adjournment was required, and confirmed she wished to continue and make comment.
The applicant provided oral evidence that she had known Mr. White, who was 29 years older than her, for 4 months at the time of the wedding, he left her 3 months after the wedding, she has never heard from him again and that she was not aware if the marriage had ever been registered or legally recognised.
The applicant provided oral evidence that she had not sought to divorce Mr. White, as she did not believe the marriage was official, and that at the time of lodging the application to marry the sponsor had not detailed she had previously married.
The Tribunal notes the Australian Marriage Certificate of the couple, registered on 5 September 2016, notes the applicant as “Never Validly Married”.
The Tribunal has regard to the documented existence of a 1991 marriage by the applicant and the oral evidence of the applicant, and determines, at the time of the visa application and this decision, the marriage of the parties on 31 August 2016 was not valid for the purposes of the Act as required by s.5F(2)(a), as the applicant was married to another
The Tribunal was not provided with any evidence confirming the 1991 marriage of the applicant had ceased, and therefore gone on to assess the parties relationship on the basis on if they are de facto partners.
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
The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, no real estate was or is jointly owned by the parties.
The Tribunal determines from the documented and oral evidence of the parties that at the time of the visa application and this decision, the parties do not have any joint liabilities.
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 has a legal obligation with regard to the other.
The Tribunal accepts the oral evidence of the applicant working at a Nursing Home.
The Tribunal accepts the oral evidence of the sponsor being retired.
The Tribunal accepts the documented and oral evidence, confirmed independently by the parties, of the joint bank account operated to which both parties deposit funds, to pay for significant commitments such as home rent, household and entertainment costs, and determines, at the time of application and this decision, this account confirms the pooling of financial resources in relation to major financial commitments and the sharing of day-to-day household costs.
The Tribunal accepts the documented and oral evidence of the parties on the transfer of the majority of superannuation funds of the sponsor to the joint bank account of the parties in July 2017 and determines, at the time of this decision, this to represent the pooling of financial resources in relation to major financial commitments.
The Tribunal accepts the documented and oral evidence, confirmed independently, of the sponsor making regular money transfers to the applicant while she lived in the Philippines to assist with the living costs of the applicant and her 3 children and determines this to represent the sharing of day-to-day household expenses.
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
The Tribunal accepts the documented, photographic and oral evidence from the parties of both having adult children, noting the regular transfer of funds by the parties to the children of the applicant from January 2017 and determines this to represent joint responsibility of the care and support of children.
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 since March 2016.
The Tribunal accepts the oral evidence, confirmed by the parties independently, on the roles each undertakes in the household, and in acknowledging the work schedule of the applicant and the sponsor being retired, 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 in a de facto partner 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
The Tribunal accepts the photographic, documented and oral evidence and determines at the time of application and this decision that the parties were married on 31 August 2016 and represent themselves to other people as being married to each other.
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.
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.
The Tribunal accepts the evidence of the parties meeting in November 2014 and committing to each other in June 2015.
The Tribunal accepts the photographic, documented and oral evidence that the parties have lived together since March 2016.
The Tribunal accepts the documented and oral evidence of the parties of the issues they have dealt with and the support provided to each other in getting through these issues and determines, at the time of application and this decision, that companionship and emotional support is provided by each of the parties.
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 as being long-term.
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 de facto couple to the exclusion of all others, with the relationship genuine and continuing and they had and continue to live together.
The Tribunal accepts that the parties have been in a committed relationship since June 2015 and determines that at the time of the application and this decision the parties live together.
On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of the visa application and the time of this decision.
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 she 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).
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.
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: r.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.
There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement. The Tribunal accepts that the parties have been in a committed relationship since June 2015. Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.
For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in r.2.03A.
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
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
·r.2.03A
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).
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).

[2019] AATA 6386

1 November 2019

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice