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…

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 4663
Decision Date: 3 November 2016

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application by a visa applicant who had been refused a Partner (Temporary) (Class UK) (Subclass 820) and a Partner (Residence) (Class BS) (Subclass 801) visa. The core dispute concerned whether the applicant and their sponsor were in a genuine and continuing de facto relationship, and whether this relationship had existed for at least 12 months prior to the visa application. A delegate of the Department of Immigration had previously refused the application, finding insufficient evidence to meet the definition of a de facto partner under section 5CB of the *Migration Act 1958* (Cth).

The Tribunal was required to determine if the applicant and sponsor met the criteria for a de facto relationship as defined by the *Migration Act* and *Migration Regulations 1994*, specifically considering the financial, household, social, and commitment aspects of their relationship. The Tribunal also had to consider the applicant's failure to attend a scheduled hearing and provide further evidence, and decide whether to proceed with the review based on the existing material.

The Tribunal affirmed the delegate's decision, finding that the evidence presented did not substantiate a genuine and continuing de facto relationship. The Tribunal noted the lack of convincing evidence regarding joint financial arrangements, shared household responsibilities, and the presentation of the relationship to the wider community. The applicant's failure to attend the hearing or provide additional documentation further contributed to the Tribunal's conclusion that the applicant had not satisfied the visa criteria. Consequently, the Tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 CampbellMemberATTACHMENT - Extract from 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).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Clyde CampbellMemberATTACHMENT - Extract from 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).