1420627 (Migration) - [2016] AATA 4967

1420627 (Migration) [2016] AATA 4967 (18 August 2016)
DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER: 1420627
MEMBER:Katie Malyon
DATE:18 August 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 18 August 2016 at 9:54pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner Temporary) – insufficient evidence of a de facto relationship – relationship breakdown in the first 12 months –unregistered de facto relationship– Review applicant feared ex-husband – Review applicant unable to recall relationship details – inconsistent evidence about living arrangements –compassionate or compelling reasons – Review applicant’s mental condition – visa applicant resigned from job to come to Australia – decision under review affirmed
PRACTICE AND PROCEDURE – hearing postponed due to applicant’s medical condition – documentation submitted post hearing – claims some supporting documents are lost
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03, 2.03A Schedule 2 cls 820.211, 820.221
CASES
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Pochi (1980) 4 LD 139
Truong v MIBP [2014] FCA
Nepal v MIBP [2015] FCCA 305
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision by a delegate of the Minister for Immigration on 27 November 2014 to refuse to grant [Mr A] a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
[Mr A] applied for the visa on 26 June 2013 on the basis of his relationship with his sponsor, Australian citizen [Ms B]. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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 delegate refused to grant the visa on the basis that [Mr A] did not satisfy cl.820.211(2) of Schedule 2 of the Regulations because there was insufficient evidence that the parties had been in a de facto relationship for the 12 month period before the visa application. The delegate was not satisfied that there were any grounds to waive the 12 month requirement. A copy of the delegate’s decision was provided to the Tribunal together with the review application (the Delegate’s Letter).
The issues that arise in this case are:
·First, whether [Mr A] and [Ms B] were in a genuine de facto relationship at the time of lodgement of the visa application; and, if so,
·Second, whether [Mr A] and [Ms B] had been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application; and, if not,
·Third, whether there are compelling and compassionate circumstances…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 4967
Decision Date: 18 August 2016

CaseChat Overview and Summary

This matter concerned an application for review of a decision not to grant the applicant a Partner (Temporary) (Class UK) visa. The applicant claimed to be in a de facto relationship with an Australian citizen at the time of the visa application. The core dispute revolved around whether the parties had established a genuine and continuing de facto relationship for the required period, particularly given the relationship had broken down within the first 12 months and was not registered. The review was heard by Member Katie Malyon of the Administrative Appeals Tribunal.

The Tribunal was required to determine three key issues: first, whether the parties were in a genuine de facto relationship at the time the visa application was lodged; second, if so, whether they had been in that relationship for at least 12 months prior to the application; and third, if the 12-month requirement was not met, whether there were compelling and compassionate circumstances justifying the grant of the visa. These issues were prerequisites to considering other criteria for the Partner visa.

The Tribunal considered the definition of a de facto relationship under section 5CB of the Migration Act 1958 (Cth) and the relevant regulations, which require a mutual commitment to a shared life, a genuine and continuing relationship, cohabitation, and no familial relationship. It also had regard to the specific criteria for Partner visas, including the 12-month relationship duration requirement under regulation 2.03A, unless exceptions applied, such as a registered relationship or compelling and compassionate circumstances. The Tribunal noted that evidence submitted after the hearing, including communications with a migration agent and information about Jordanian law, along with documents addressed to the applicant in a specific suburb, were considered. However, the applicant's inability to recall relationship details and inconsistent evidence regarding living arrangements, coupled with the relationship breakdown within the first 12 months and the absence of a registered relationship, led the Tribunal to conclude that the applicant did not satisfy the criteria for the visa.

Ultimately, the Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, finding that the applicant had not met the necessary criteria for the grant of the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

After the hearing, [Mr A] forwarded the Tribunal on 2 further statements by email on 10 August 2016. One statement from [Mr A] summarises, and includes downloads from, communications with his former registered migration agent. The other statement is from [Mr C] and summarises aspects of Jordanian law that his brother claims will impact on [Mr A] if he is forced to return to Jordan. The Tribunal also received a bundle of original documents comprising letters addressed to [Mr A] in [Suburb 1]. The letters are from [State 1] Road Transport Authority, [Bank 1], [Bank 2], [City 1] Hospital and Health Services, [utilities company]and Medicare. As noted above, the earliest of these documents dates from 3 June 2014. The latest dates from 25 March 2015, a month after [Mr A] says he left the [Suburb 1] property. CONSIDERATION OF CLAIMS AND EVIDENCE It is common ground that [Mr A]’s relationship with [Ms B] has ceased. The issues in this case are: first, whether the parties were in a genuine de facto relationship at the time of lodgement of the visa application; and, if so, whether [Mr A] and [Ms B] had been in their de facto relationship for at least the period of 12 months ending immediately before the date of the application; and, if not, whether there are compelling and compassionate circumstances for grant of the visa. All of these issues need to be satisfied before the other criteria for grant of a Partner visa can be considered. Relevant law Clause 820.211(2)(a) and clause 820.221 of Schedule 2 of the Regulations require that at the time the Partner 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, [Mr A] claims that at the time of application he was the de facto partner of his sponsor who is an Australian citizen. ‘De facto partner’ is defined in s.5CB of the Act and 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) of the Act. 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 of the relationship and the nature of the parties’ household as well as their commitment to each other as set out in r.1.09A(3) of the Regulations. The provisions of r.1.09A of the Regulations are extracted in the Annexure to this decision. Persons claiming to be in a de facto relationship for a Partner visa must also meet the additional criteria in r.2.03A of the Regulations. These are:· the couple are both at least 18 years of age; and,· with limited exceptions, the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship must have existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is, or was, a humanitarian visa holder or, in the alternative, for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: r.2.03(4) and r.2.03(5) of the Regulations. The provisions of r.2.03A of the Regulations are extracted in the Annexure to this decisionWere the parties in a de facto relationship at the time of application?

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Katie MalyonMemberATTACHMENT - Extract from the Migration Regulations 19941.09A 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).…. 2.03A Criteria applicable to de facto partners(1)In addition to the criteria prescribed by regulations 2.03 and 2.03AA, if a person claims to bein a de facto relationship for the purposes of a visa application, the criteria in subregulations (2) and (3) are prescribed.(2) If a person mentioned in subregulation (1) applies for a visa:(a) the applicant is at least 18; and(b) the person with whom the applicant claims to be in a de facto relationship is at least 18. (3) Subject to subregulations (4) and (5), if: (a) a person mentioned in subregulation (1) applies for:(i) a permanent visa; or (ii) a Business Skills (Provisional) (Class UR) visa; or (iia) a Business Skills (Provisional) (Class EB) visa; or(iii) a Student (Temporary) (Class TU) visa; or(iv) a Partner (Provisional) (Class UF) visa; or(v) a Partner (Temporary) (Class UK) visa; or(vi) a General Skilled Migration visa; and (b) the applicant cannot establish compelling and compassionate circumstances for the grant of the visa;the Minister must be satisfied that the applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the application. (4) Subregulation (3) does not apply if the applicant applies on the basis of being: (a) in a de facto relationship with a person who:(i) is, or was, the holder of a permanent humanitarian visa; and(ii) before the permanent humanitarian visa was granted, was in a de facto relationship with the applicant and informed Immigration of the existence of the relationship; or (b) in a de facto relationship with a person who is an applicant for a permanent humanitarian visa. (5) Subregulation (3) does not apply if the de facto relationship is a relationship that is registered under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations.oOOo

Ratio Decidendi

Legal Principle Established

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