1406087 (Migration)

[2015] AATA 3124

1406087 (Migration) [2015] AATA 3124 (14 July 2015)

DECISION RECORD

DIVISION:Migration and Refugee Division

APPLICANT:  Ms Xing Hui

MRT CASE NUMBER:  1406087

DIBP REFERENCE(S):  CLF2012/195280

MEMBER:McGowan

DATE:Tuesday July 14, 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.



Statement made on 14 July 2015 at 9:57am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on March 4, 2014 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 September 21, 2012 on the basis of her relationship with her sponsor.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211on the basis the applicant was not the de facto partner of her sponsor.

4. The applicant appeared before the Tribunal on April 14 by telephone from China to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor, Mr Zhiwei Yang.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant satisfies the requirements of the Regulations for the grant of a subclass 820 visa.

6. In the Decision Record of the Department, which was provided to the Tribunal by the applicant, the Department summarised the evidence as follows:

   You lodged a valid application for a UK Partner (Temporary) and BS Partner (Residence) visa on 21/09/2012 on the grounds of being in a spousal relationship with an Australian citizen, Zhiwei Yang, who lodged a sponsorship in support of the application. When you lodged your partner visa application you were not the holder of a substantive visa because your TU-573 visa ceased on 15/03/2007.
   
   I note that you departed Australia on a Bridging Visa E on 12/8/2013 and currently do not have a visa to return onshore.

7. The Tribunal notes that the applicant provided a copy of the Department’s decision record to the Tribunal prior to hearing. No other documentary evidence or submission(s) were submitted to the Tribunal in support of the applicant’s visa application.

8. However, before the Tribunal considers the evidence regarding the relationship between the parties there is another issue which must be considered in this case.

9. The Department’s movement records confirm that the applicant last departed Australia on August 12, 2013 on a Bridging Visa E. The Bridging Visa E allows a holder to stay in Australia lawfully for a short time. It immediately ends if a holder leaves Australia. Once a visa holder has left Australia, the holder is not able to return unless the holder has another substantive visa.

10. The Tribunal wrote to the applicant on April 7, 2015 and advised that at the hearing the Tribunal will consider whether the applicant is currently outside Australia or whether the applicant has any visa which would enable her to return to Australia in the near future. The Tribunal referred the applicant to the requirements of the Act under section 65 and section 40, which the Tribunal must ensure are met before the Tribunal considers whether the requirements of the Act and Regulations in relation to de facto or partner relationships are met.

11. The applicant confirmed in her evidence to the Tribunal that she has no visa entitling her to return to Australia, and therefore has no plans to return to Australia in the near future.

12. The Tribunal is satisfied therefore that at the time of this decision the applicant is outside Australia and is unable to return.

13. The legal basis for the grant of visas is found in s.65 of the Migration Act, which provides, so far as is relevant, as follows:

    65. (1) After considering a valid application for a visa, the Minister:

    (a) if satisfied that:

    (i) the health criteria for it (if any) have been satisfied; and

    (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

    (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

    (iv) any amount of visa application charge payable in relation to the application has been paid;

    is to grant the visa; or

    (b) if not so satisfied, is to refuse to grant the visa.

14. Section 40 of the Act provides:

    40 (1) The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

    (2) Without limiting subsection (1), the circumstances may be, or may include, that, when the person is granted the visa, the person:

    (a) is outside Australia; or

    (b) is in immigration clearance; or

    (c) has been refused immigration clearance and has not subsequently been immigration cleared; or

    (d) is in the migration zone and, on last entering Australia:

    (i) was immigration cleared; or

    (ii) bypassed immigration clearance and had not subsequently been immigration cleared.

15. The Tribunal notes that cl.820.411 provides as follows:

    820.411          The applicant must be in Australia, but not in immigration clearance, when the visa is granted.

16. During the hearing held April 14, 2015 the applicant sought additional time from the Tribunal in which to consult a solicitor and make a submission. As the applicant is unrepresented, the Tribunal granted the request by the applicant to make a submission no later than June 14, 2015. As of the time of this decision (July 14, 2015) no submission has been received.

17. Unfortunately for the applicant, therefore, the fact that she is outside Australia and has no right of return to Australia means that she cannot meet the requirements of cl.820.411.

18. It is not necessary for the Tribunal to consider whether the requirements of the Act and Regulations in relation to de facto relationships are met, as the Tribunal is satisfied that the provisions of ss.40 and 65 of the Act operate to prevent the grant of the visa to the applicant.  

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    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).