Ybarola (Migration)

[2019] AATA 3932

Ybarola (Migration) [2019] AATA 3932 (21 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jannet Ortega Ybarola
Mr Marl Jason Ortega Ybarola
Mr Rolls Royce Ortega Ybarola

CASE NUMBER:  1804217

HOME AFFAIRS REFERENCE(S):           BCC2016/3287692

MEMBER:Steven Griffiths

DATE:21 August 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2) of Schedule 2 to the Regulations

Statement made on 21 August 2019 at 9:42am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – pooling of financial resources – joint care and support of children from previous marriages – lived together at time of visa application – subsequent breakdown of relationship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 820.211

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 applicants Partner (Temporary) (Class UK) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named applicant, Ms. Jannet Ortega Ybarola, applied for the visa on 4 October 2016 on the basis of her relationship with her sponsor, Mr. Maurice Peter Behan. 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 who are applicants for the visa, Mr. Marl Jason Ortega Ybarola and Rolls Royce Ortega Ybarola, 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.820.211because the delegate was not satisfied the visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor.

4. The primary and secondary applicants appeared before the Tribunal on 14 August 2019 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from Mrs. Janice Hancock, a friend of the applicant. The hearing was conducted with an interpreter on standby by telephone, listening to the hearing and prepared to support, but was not required to be used.

5. The applicants were represented by their registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 and the evidence from the Tribunal hearing.

   ISSUE

8. 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, at the time of the visa application.

   BACKGROUND OF THE EVIDENCE 

9. Ms. Ybarola was born in Jose Panganiba, Philippines, in 1973. Her parents are deceased, and she has a sister, born 1965, and two brothers, born 1967 & 1968.  She has three children, a daughter, born 1993 and living in the Philippines, and two sons who are the secondary applicants and were born in 1997 and 2005.  

10. Mr. Behan was born in Australia in 1965. His parents are deceased and he has two sisters and two brothers, born 1956, 1958, 1959 and 1962, with all living in Australia. He married Lorraine Belinda Behan, born 1964, in February 1991, with whom he has two daughters and a son, born 1992, 1994 and 1997, and divorcing in August 2013.

    INFORMATION TO THE TRIBUNAL

11. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Statutory Declaration by applicant dated 14/2/18

    Women’s Legal Service seeking merit review

    Statutory Declaration by Janice Hancock in support of applicants dated 7/2/18

    Documents forwarded by Women’s Legal Service in support of merit review, received 28/2/18, includes Fleurieu Domestic Violence Service statement 7 contact first made June 2017, text messages from sponsor, medical visit by applicant records, statement by applicant employer and details of money transfers in 2015 from sponsor to applicant

    Domestic Violence statement by applicant dated 9/2/18

    Photos of text messages from sponsor to applicant

    Emails from sponsor to Department Immigration

    Photos of times of sponsor with youngest son of applicant 

    Is the sponsor an Australian citizen?

12. 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 recognizes that the sponsor is an Australian citizen by birth.  

    Whether the parties are in a spouse or de facto relationship

13. ‘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).

14. 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?

15. 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 30 July 2016.

16. The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).

    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

17. The Tribunal determines that at the time of the visa application, no real estate or other major assets was owned jointly by the parties. 

18. The Tribunal determines that at the time of the visa application, no joint liabilities are held by the parties.

19. The Tribunal determines that at the time of the visa application, none of the parties has a legal obligation with regard to the other.

20. The Tribunal accepts the documented and oral evidence of financial support provided by the sponsor to the applicant and secondary applicants in paying for all costs of attendance by the applicants on the occasions between the first meeting of the parties in 2012 and the lodgement of the visa application in October 2016, for which only in the final 10 weeks were the applicants living in Australia, and determines this financial support to represent, at the time of the visa application, the pooling of financial resources, especially in relation to major financial commitments.

21. The Tribunal accepts the documented and oral evidence of money orders from the sponsor to the applicant during 2015 and determines this transfer of funds to represent, at the time of the visa application, the pooling of financial resources and the sharing of day-to-day household expenses.

22. The Tribunal notes the documented and oral evidence of the commitment by the primary applicant and the oldest secondary applicant to contribute to the household costs when able to find paid work as an intention to share the day-to-day household expenses but not fulfilled at the time of the visa application. 

23. The Tribunal accepts the documented and oral evidence, for the period between the arrival of the applicants in Australia on 20 July 2016 and the lodgement of the visa application on 4 October 2016 during which the primary applicant was unable to secure paid work, and determines, at the time of the vis application, the payment by the sponsor of all household costs to represent the sharing of day-to-day household expenses.

24. The Tribunal accepts the documented and oral evidence of the sponsor being responsible for the private health insurance of the applicants, with BUPA, and determines, at the time of the visa application, to represent the pooling of financial resources, especially in relation to major financial commitments.

25. The Tribunal notes the oral evidence of the primary applicant that the sponsor and she had made each other the beneficiary of their Wills. In the absence of documented evidence from the parties, the Tribunal does not accept this claim.

26. The Tribunal notes the oral evidence of the primary applicant that the sponsor had made her a beneficiary to his superannuation scheme. In the absence of documented evidence from the parties, the Tribunal does not accept this claim.

    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

27. The Tribunal accepts that the parties each have three children from previous marriages, with the children of the sponsor living independently, as does the eldest child of the applicant, while the two youngest children of the applicant, who are secondary applicants, live with the sponsor and primary applicant, and determines, at the time of the visa application, the parties to have joint responsibility for the care and support of the two children.

28. The Tribunal notes the photographic, documented and oral evidence of the good relationship the applicant has with the adult children of the sponsor.

29. The Tribunal notes the documented, photographic and oral evidence of the efforts made by the sponsor to assist the two secondary applicants with swimming lessons, interest in the guitar and purchase of school uniform needs and determines this to represent, at the time of the visa application, joint responsibility for the care and support of children.

30. The Tribunal accepts the photographic, documented and oral evidence that the parties met for various periods up to three weeks every three months from the commencement of the relationship in September 2012 to the applicants arriving in Australia in 20 July 2016 for the parties to marry, living together from that time. The Tribunal determines that at the time of the visa application the parties had been living together full time for 75 days in the home owned by the sponsor in Strathalbyn, South Australia.

31. The Tribunal accepts the photographic, documented and oral evidence on the roles each undertook in the household, noting the sponsor is a fly-in / fly-out working on a three week rotation so different responsibilities were assumed depending on the location of the sponsor, and determines, at the time of application, 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 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

32. The Tribunal accepts the photographic, documented and oral evidence of the parties having a commitment ceremony in Thailand on 3 May 2015, attended by family and friends from Thailand and Australia, and determines thus to represent the opinion of family and friends as being supportive of the relationship and marriage. 

33. The Tribunal accepts the photographic, documented and oral evidence of the attendance of family and friends at the wedding in Australia on 30 July 2017 and determines, at the time of the visa application, the parties represent themselves to other people as being married to each other.

34. The Tribunal accepts the photographic, documented and oral evidence from family and friends and determines, at the time of application, the opinion of family, friends and acquaintances as being supportive of the relationship and marriage.  

35. The Tribunal accepts the photographic, documented and oral evidence of a significant number of occasions in which the parties had social contacts with others and determines, at the time of the visa application, the parties plan and undertaken joint social activities.  

36. The Tribunal accepts oral evidence of the applicant the in the initial period of the marriage, as she was a new resident of Australia, that she relied on the social network of the sponsor and for the work period in which the sponsor was away she usually remained at home.   

    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.

37. The Tribunal accepts the photographic, documented and oral evidence of the parties first connecting online in September 2012, meeting in Thailand in November 2012 and then continuing to meet in various countries, including five times in Australia, before the applicants came to Australia on 20 July 2016 for the marriage.

38. The Tribunal accepts the photographic, documented and oral evidence of the parties of the occasions in which they have lived together in Australia, and determines, at the time of the visa application, the parties had lived together for 378 days in Australia.

39. The Tribunal notes the photographic, documented and oral evidence of occasions in other countries, usually Thailand, in which the parties had lived together and determines, at the time of the visa application, the parties had lived together out of Australia during 7 holiday periods for a total of 125 days.  

40. The Tribunal notes the photographic, documented and oral evidence of the support each was providing to each other and determines this represent, at the time of the visa application, the companionship and emotional support the parties draw from each other.   

41. The Tribunal accepts the documented and oral evidence and determines that the parties, at the time of application, had an ongoing commitment to each other and viewed the relationship and marriage as being long-term.

    Other circumstances of the relationship

42. The Tribunal presented the primary applicant and her representative, at the start of the hearing, a copy of a Section 376 Certificate issues by the delegate of the Minister of Home Affairs over Folio 1 to 64 of information in the Department of Immigration file.

43. The Tribunal notes the sponsor has withdrawn from the application following the breakdown of the relationship and the applicants leaving the family home of the in September 2017. 

44. The Tribunal notes the presence of information in the Department of Immigration file, and the Administrative Appeal Tribunal file, of domestic violence assertions from the primary applicant by the sponsor against her and the two children.

45. The Tribunal notes the decision of the delegate, while acknowledging the breakdown of the relationship and domestic violence reports, was based solely on the determination of the spousal arrangement as at the time of application.

46. 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, the parties had mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.

47. The Tribunal accepts that the parties have been in a committed relationship since October 2012 and married in July 2016 and did not, at the time of the visa application, live separately.

48. 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. The Tribunal is further satisfied the sponsor was not prohibited by s.820.211(2B) from being a sponsoring partner.

49. 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).  

50. 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.

51. The Tribunal considers the secondary applicants should be reconsidered in light of its findings on the primary applicant.

    DECISION

52. The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl.820.211(2) of Schedule 2 to the Regulations

    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).