1502173 (Migration) - [2016] AATA 4663

1502173 (Migration) [2016] AATA 4663 (3 November 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Takuya Okada
CASE NUMBER:  1502173
DIBP REFERENCE(S):  CLF2013/313282
MEMBER:Clyde Campbell
DATE:3 November 2016
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 03 November 2016 at 2:55pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 12 January 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 23 December 2013 on the basis of his relationship with his sponsor. 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 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) of the Migration Regulations because the delegate was not satisfied the applicant was the de facto partner of the sponsor as defined under s.5CB of the Migration Act 1958. After considering all the evidence provided in relation to the matters prescribed under Regulation 1.09 A and Regulation 2.03A, the delegate was not satisfied that the couple was in a genuine and continuing de facto relationship. From the evidence available at time of decision, the delegate was not satisfied also that the applicant had been in a de facto relationship for 12 months prior to the time of application and that there were compelling reasons for waiving the requirement under paragraph (3) of regulation 2.03.
An application for review was lodged with the Tribunal on 12 February 2015.
By letter dated 8 August 2016[1], approximately four (4) weeks before the scheduled hearing, the Tribunal wrote to the applicant, advising that it had considered all the material before it relating to the review application, but that it was unable to make a decision on that information alone. The applicant was invited to appear before the Tribunal on 5 September at 9:30 am (Qld time).
[1] T1, folio 23-28
On 2 September 2016, the Tribunal wrote to the applicant to advise of the postponement of the hearing scheduled for 5 September 2016.
On 8 September 2016, the Tribunal sent a letter to the applicant inviting him to attend a rescheduled hearing at 9:30 AM (Qld time) on 6 October 2016.
In connection with the review, and in accordance with section 379 A(5)(b) of the Act, the hearing invitation letters, dated 8 August 2016 and 8 September 2016, were transmitted by email to the applicant and to the last email address provided to the Tribunal by the applicant.
The applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.
The Tribunal Discretion to Reschedule the Hearing
The Tribunal notes that under s.362B(1) of the Act it has a discretion, which is confirmed by s.362B(2), to reschedule the applicant’s appearance before it, or to delay its decision on the review in order to enable his appearance to be rescheduled. The Tribunal must exercise its power under s.362B “reasonably” and, that reasonableness is informed by the factual circumstances in respect of this particular review and this particular applicant.[2]
[2] See KauervMIBP [2014] FCA 915.
The Tribunal notes that it is under no statutory obligation to seek to contact the applicant to enquire as to the reason for the non-attendance. In SZHSQ v MIMA[3] the Federal Court commented that the Act expressly authorises the Tribunal to proceed without making such enquiries.[4] Similarly, in Shah v MIAC[5] the Federal Magistrates Court commented that to impose a requirement that the Tribunal take steps to ascertain whether an applicant wishes to have a further opportunity to appear following their non-appearance at a scheduled hearing would undermine the administrative certainty sought to be achieved by the deemed receipt provisions applicable to the sending of hearing invitations.[6]
[3] (2006) 155 FCR 159 at [62].
[4] In MZYZI v MIAC [2013] FMCA 242 (Riley FM, 4 February 2013) at [13], the Court observed that there is no obligation upon the Tribunal to telephone an applicant to check his or her whereabouts if they fail to attend a scheduled hearing. See also Perera v MIAC [2008] FMCA 1526 (Riley FM, 12 November 2008).
[5] [2011] FMCA 18 (Cameron FM,16 February 2011) at [110].
[6] in the case, the Court held that the fact that the applicant had previously responded to the Tribunal's correspondence but failed to do so for the hearing invitation, did not make it obvious that an enquiry should be made as to whether he wished to attend the hearing, particularly as the invitation had apparently been sent without incident to a professional migration agent.
In considering whether it would be appropriate for it to exercise this discretion in the applicant’s favour, the Tribunal has taken into account its legal obligations under the Act to pursue the objective of providing a mechanism of review that is fair, just, informal, economical and quick.
The Tribunal has had regard to the letter sent to the applicant dated 13 February 2015[7] acknowledging receipt of the application for review and inviting the applicant to provide material and written arguments for the Tribunal to consider as soon as possible. The letter dated 13 February 2015 was transmitted by email to the applicant to the last email address provided to the Tribunal by the applicant in connection with the review in accordance with s.379A(5)(b) of the Act.
[7] T1, f 16-19.
The Tribunal has taken into account that three SMS hearing reminders, automatically generated by the Tribunal, were sent to the applicant on 29 August 2016, 2 September 2016 and 5 October 2016 to the telephone number provided by the applicant in his application for review to the Tribunal.
The Tribunal has also taken into account that the applicant’s sponsor contacted the Tribunal by phone around 1.50 pm on 8 August 2016, to discuss the options for the applicant to participate in the hearing. The Tribunal advised the sponsor to arrange for the review applicant to contact the Tribunal regarding the hearing or alternatively arrange for the applicant to write to the Tribunal and request that his partner be added as a party through whom the Tribunal may direct any case enquiries and responses.
Prior to the scheduled hearing on 6 October 2016, no further communication was received from the review applicant or his sponsor.
Having regard to all the circumstances outlined above, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review, without taking any further action to enable the applicant to appear before it.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal noted the applicant made a combined application for a Partner (Temporary) (Class UK) (Subclass 820) and a Partner (Residence) (Class BS) (Subclass 801) visas on 23 December 2013.
The issue in the present case is whether the applicant and the sponsor, at the time of application and at the time of decision, were in a genuine and continuing de facto relationship and whether the applicant and sponsor were in a de facto relationship for 12 months prior to the time of application.
The Tribunal has noted that a delegate of the Department of Immigration refused the visa application in a decision made on 12 January 2015.The Tribunal has noted the delegate’s decision that the applicant does not meet the definition of a de facto partner under s.5CB of the Migration Act.
The Tribunal has noted that the applicant lodged a valid review application on 12 February 2015.
On 8 September 2016, in its hearing invitation, the Tribunal invited the applicant to attend a rescheduled hearing on 6 October 2016 and to provide evidence in relation to the case.
The applicant failed to attend the scheduled hearing on 6 October 2016 and no reason for the applicant’s non-attendance was provided to the Tribunal. The applicant did not provide any supporting evidence in writing to the Tribunal. In these circumstances, the Tribunal has decided to proceed to a decision on the basis of the evidence before it.
The Tribunal has considered the documentary evidence within the Departmental[8] and Tribunal[9] files relating to the applicant. The Tribunal has also had regard to the material referred to in the delegate’s decision, and other material available to it from various sources.
[8] D1 – Departmental file CLF 2013/313282, f. 1 – 120
[9] T1, f 1 – 39
The Tribunal has noted that, at time of the Department’s decision, the delegate concluded there was insufficient documentary evidence that the applicant and sponsor were in a genuine and continuing de facto relationship.
The Tribunal has noted also that, the delegate found there was insufficient evidence that the applicant and sponsor had been in a de facto relationship for 12 months prior to the time of application.
The Tribunal has also noted the delegate’s findings, the reasons and conclusions in relation to the existence of a de facto relationship in accordance with s.5CB of the Act and under the provisions of regulation 1.09A. The Tribunal has noted the delegate’s findings that :
·With regard to the financial aspects of the relationship, there was scarce evidence and the submitted bank statement failed to satisfy the delegate that the account had been jointly operated by the applicant and sponsor for day to day household expenses or joint savings;
·With regard to the nature of the household, there was no evidence provided by the applicant or sponsor to substantiate their claim that they commenced a de facto relationship on 3 June 2012 and shared the household responsibilities as a couple;
·while there was some evidence pertaining to the social aspects of the relationship with the applicant and sponsor presenting themselves as a couple to some family members, there is no convincing evidence the applicant and sponsor presented themselves to family, friends and the wider community as being in a committed de facto relationship, or were regarded by others as such; and
·While the applicant and sponsor claim to have been living together since 22 February 2012 as co-tenants and to have emotionally committed to one another in an exclusive relationship on 3 June 2012, the evidence provided does not substantiate the claim that the relationship was de facto in nature.
The Tribunal has had regard for the evidence obtained from the applicant’s movement records which indicates the applicant was the holder of a Bridging (General) visa class WE-050 which ceased on 14 September 2015. The Tribunal has taken into account that the applicant is offshore and departed Australia on 14 September 2015.
Whether the parties are in a spouse or de facto relationship
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 Australian citizen.
Are the parties in a de facto relationship?
‘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).
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.
In order to determine whether the couple were, at time of application, and continue to be at time of decision, in a genuine and continuing de facto relationship, the Tribunal has undertaken an assessment of the evidence available on the claimed de facto relationship under Subclause (2) of regulation 820.211 and the provisions of r.1.09A and r. 2.03A of the Migration Regulations 1994.
The Tribunal has had regard to the evidence that the applicant and the sponsor provided at time of application to the Department of Immigration and evidence available at time review. The Tribunal has considered:
·     a handwritten statement provided by the applicant and dated 19 December 2013;
·     a handwritten statement provided by the sponsor dated 19 December 2013;
·     unlabelled photographic images of the sponsor and applicant;
·     a handwritten statement by the applicant’s mother;
·     a bank statement in the name of the sponsor for the period 6 August 2014 to 31 October 2014;
·     a handwritten statement provided by the sponsor and dated for December 2014;
·     an incomplete and unsigned general tenancy agreement, dated August 2014; and
·     a Queensland Driver’s License renewal notice, issued 20 October 2014 to the sponsor
The Tribunal has found the following:
·     In relation to financial aspects, there was no evidence pertaining to the pooling of financial resources by the applicant and sponsor. The bank statement submitted as evidence has limited monthly transactions and does not demonstrate any pooling of financial resources or show how the applicant and sponsor shared their day-to-day living expenses. There was also no evidence that this account was used by the sponsor or that the sponsor had transferred money into this account. There was no evidence that the sponsor and applicant had pooled financial resources in any way, had jointly made any significant joint purchase, or shared any day-to-day financial responsibilities.
·     In relation to household aspects, there was some evidence that the applicant had rented a room from the sponsor from 22 February 2012. A joint tenancy agreement, dated 22 August 2014, was incomplete and unsigned by the applicant and sponsor and the Tribunal assigned no weight to this documentary evidence. Evidence pertaining to the setting up of a joint household and jointly sharing the responsibilities of this household, was sparse and unconvincing.
·     In relation to social aspects of the relationship, limited evidence was provided. While there was some evidence that the applicant and sponsor presented themselves as a couple to some family members, there was no evidence of the couple being recognised by their family and circle of friends as being a couple as one would expect in a genuine relationship.
·     In relation to the persons’ commitments to each other, there was no evidence of any forward planning or planning for contingencies that one would expect to find between two persons in a committed de facto relationship.
The Tribunal has found no convincing evidence that the applicant and sponsor were living together in a genuine and continuing de facto relationship at the stated address in Gatton, Queensland, from the claimed date of entering into a committed relationship on 3 June 2012.
The Tribunal found no convincing evidence that the applicant and sponsor represented themselves to other people as a de facto couple, engaged in joint social activities, or demonstrated companionship or emotional support for each other.
The combination of all of the above concerns leads the tribunal to find that, at the time of the Visa application and time of review, there is insufficient evidence to enable the Tribunal to find that the applicant and the sponsor were in a genuine and continuing de facto relationship and to having a mutual commitment to a shared life together as a couple.
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. These are: that the couple are both at least 18 years of age; and with limited exceptions, 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, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship 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 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), (5).
The Tribunal finds that the applicant and sponsor had not been in a de facto relationship for 12 months prior to the date of lodging a partner visa application on 23 December 2013.
The Tribunal also finds that, at the time of visa application, the sponsor was not a humanitarian visa holder, and the de facto relationship between the applicant and sponsor has not been registered under a relevant State or Territory law: r.2.03(4), (5).
The Tribunal was unable to be satisfied that compelling reasons exist for the waiver of regulatory requirement under r.2.03A for persons claiming to be in a de facto relationship and applying for a partner visa.
The Tribunal is not satisfied that a de facto relationship between the applicant and sponsor as defined in s.5CB of the Act, is ongoing, or existed at the time of lodgement of the combined partner visa application.
The Tribunal finds that, at the time of the visa application, the applicant does not meet the additional criteria of r. 2.03A of the Migration Regulations.
Given these findings, the Tribunal is not satisfied that at the time the visa application was made, and at the time of review, the parties were in a genuine and continuing de facto relationship as defined in s.5CB of the Act.
Therefore the applicant does not meet cl.820.211(2)(a) and cl.820.221.
For the reasons above, the applicant does not satisfy the criteria for the grant of a Partner (Temporary)(Class UK) (subclass 820) visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Clyde Campbell
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).