1819506 (Migration)

[2022] AATA 977

1819506 (Migration) [2022] AATA 977 (18 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1819506

MEMBER:Stephen Conwell

DATE:18 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 18 February 2022 at 11:20am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in Australia – no current evidence of financial, household and social aspects of relationship and nature of commitment provided – no appearance at hearing – applicant departed Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 362B, 379A(5)
Migration Regulation 1994 (Cth), r 1.15A, Schedule 2, cls 309.211(2), 309.221  

CASE
He v MIBP [2017] FCAFC 206

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 June 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 10 June 2016 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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.

3. The delegate refused to grant the visa on the basis that the visa applicant (applicant ) did not satisfy cl.309.211 because there was insufficient evidence that the parties were in a spousal relationship as set out in s.5F.

4. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

5. The applicant was represented in the review hearing by his authorised migration agent (agent).

6. By letter dated 2 February 2022, the Tribunal wrote to the applicant via his agent advising that due to COVID-19 it was not conducting in-person hearings for the time being and he was therefore invited to participate in a video hearing on 18 February 2022. In the invitation to attend a hearing the applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

7. The Tribunal also sent the applicant telephone SMS Reminders about the hearing five business days and one business day before the scheduled hearing. The SMS reminders were sent to the applicant’s last known phone number. On the day of the hearing the Tribunal telephoned the applicant’s last known phone number several times between approximately 10:45am and 11:15am. All attempts to call the applicant were unsuccessful. The applicant did not provide the Tribunal with any other telephone numbers and he did not attend the Tribunal hearing by telephone on the day and time scheduled. At the time of decision no reply had been received by the Tribunal.

8. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been ‘returned to sender’, and that separate SMS reminders were also sent to the applicant about the hearing. In the circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to determine the review without taking any further action to enable the applicant to appear before it.

9. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the first named applicant is a spouse of the sponsor within the meaning of s.5F(2) at the time of application and the time of decision.

    Background to the application

11. The applicant first arrived in Australia [in] December 2008 holding a Student (Dependant) visa as a dependant (subclass TU) 572) of his ex-partner, [Ms A].  He applied for a further Student (Dependant) visa in 2011 which was granted.

12. On 24 May 2012 he applied for a Student visa (TU 570) as a main applicant, with his ex-partner [Ms A] listed as an unaccompanied family member (spouse). This application was granted on 03 July 2012.

13. On 11 July 2013 he applied for a further Student visa (TU 572) as a main applicant. The application was refused on 1 November 2013. His application to the (then) Migration Review Tribunal (MRT) for a review of this refusal decision was unsuccessful.

14. The applicant then applied for a visa to stay indefinitely in Australia. This application was refused on 10 June 2015.

15. In  June 2015 the applicant lodged a combined Partner visa application (subclass UK820/ 801), sponsored by the current sponsor, [Ms B]. This application was refused on 4 February 2016. His application for a review of this refusal decision was found to be invalid due to it having exceeded the designated timeframe.

16. The applicant departed Australia [in] May 2016 as the holder of a Bridging visa (subclass 030). On 10 June 2016 he applied for the current Partner visa (Subclass UF309/BC100), sponsored by [Ms B].

17. The applicant and sponsor have stated that they first met in July 2014, committed to a life to the exclusion of all others on 23 October 2014 and married in Australia [in] May 2015.

18. Information obtained during the Department’s telephone interview with the parties on 19 June 2017 raised serious concerns regarding the nature of the parties’ relationship.

19. In July 2017, the Department wrote to the applicant inviting him to comment on its concerns before it made a final assessment of the application. On 22 August 2017 the applicant responded with comments and further evidence as set out in the decision record:

    ·Copy of a marriage certificate recording the parties’ marriage.

    ·A copy of your divorce certificate from the applicant’s ex-spouse.

    ·Receipts of money transfer made by the sponsor to the applicant’s on 01 July 2016; 09 November 2016; 15 December 2016; 28 February 2017; 23 April 2017 and 13 June 2017.

    ·Receipt for a vehicle jointly owned by the applicant and sponsor dated 16 November 2015.

    ·A copy of the applicant’s personal information card as a proof of hisr address in Australia.

    ·Statutory declaration (form 888) completed by the applicant’s friend, [C] dated 18 October 2016.

    ·Statutory declaration (form 888) completed by the applicant’s friend, [Ms D] dated 29 May 2015.

    ·Photographs of the applicant and sponsor together in Australia.

    ·Screenshots of internet chats titled ‘Chat history’ between you and your sponsor for the period September 2016 to May 2017.

    ·additional documents in support of your application on 22 August 2017 as follows:

    oStatement from yourself dated 22 August 2017 in response to the natural justice request for comments on the telephonic interview findings.

    oReceipt of money transfer made by your sponsor to you dated 13 June 2017.

    oScreenshots of internet chats titled ‘[applicant]- Chat History’ between you and your sponsor for period July to August 2017.

    Whether the parties are in a spouse or de facto relationship

20. Clauses 309.211(2) and 309.221 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 spouse of the sponsor who is an Australian permanent resident.

21. ‘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). 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 visa applicant’s and sponsor’s 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?

22. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The sponsor submitted to the Department a copy of their marriage certificate. The marriage was solemnised in accordance with the Marriage Act 1961 between the sponsor and the applicant [in] May 2015 in Melbourne. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spouse relationship met?

23. The Sponsor is a [Age 1]-year-old Australian permanent resident.  According to the evidence she has not been previously married.  The applicant is a [Age 2]-year-old male citizen of Nepal.  According to the evidence he was previously married but that ended in divorce [in] March 2015.  There are no children from that marriage. 

24. The Tribunal has considered all of the circumstances of the relationship, including the matters specified in r.1.15A, in arriving at its decision concerning the existence of a spousal relationship between the visa applicant and the review applicant.

    Financial aspects of the relationship

25. There was no probative documentary evidence before the Tribunal regarding the contemporary financial aspects of the relationship between the visa applicant and the review applicant as at the time of this decision. Whilst the Tribunal accepts that there is some limited evidence pertaining to the financial aspects of the relationship prior to the visa refusal decision, as described in the decision record, there is no current evidence to demonstrate the pooling or sharing of financial resources. There is no documentary evidence before the Tribunal indicating the current joint ownership of any major assets, joint liabilities, legal obligations between the parties or sharing of day to day household expenses.

26. Accordingly, the Tribunal places no weight upon the evidence in support of the financial aspects of the relationship at the time of this decision.

    Nature of the household

27. In support of this aspect the applicant provided to the Department a copy of his personal information card as proof of his address in Australia. This address corresponds to the residential address of the sponsor. However, the delegate found that this might indicate that the parties have resided at the same address for some period of time, it does not, of itself prove that they lived together as spouses. The Tribunal agrees with this reasoning, finding that evidence of cohabitation at the same address, it does not, of itself prove that the parties lived together as spouses. Consequently the Tribunal gives no weight to this evidence that that the parties have lived together as spouses.

28. No other evidence is before the Tribunal to support this aspect of the relationship. The Tribunal accepts that the applicant departed Australia in 2016 and therefore he and his sponsor have been living in different countries for almost six years. However, even for the period that the parties claim to have been cohabiting in a relationship, they have failed to provide any evidence that established a joint household in Australia as might be reasonably  expected of a committed couple in a genuine and continuing relationship to have established. Based on the above, the Tribunal gives no weight in support of this aspect of the relationship.

    Social aspects of the relationship

29. The Tribunal has considered the manner in which the parties represent their relationship to others and the level of recognition of their relationship by their families and friends as reasonable factors for assessing the genuineness of relationship. There is no probative documentary evidence before the Tribunal demonstrating contemporary social aspects of the relationship between the applicant and the sponsor as at the time of this decision. The Tribunal notes that evidence including third party statements, photographs and travel documentation is before it relating to the time prior to the visa refusal decision. The delegate’s decision refers to two statutory declarations (form 888) from friends.

30. The declarant [C] supports the applicant’s relationship with the sponsor. The Tribunal has reviewed this declaration and finds that the statements are general in nature and offer no justification as to why the declarant believes the claimed relationship is genuine and continuing. The delegate found the other declaration provided by [Ms D] to lack a signature-verifiable document to verify the declarant’s signature. As a result no weight was given to this document.  Nevertheless the Tribunal has reviewed the declaration provided by [Ms D], finding it to be brief and general in nature. The declarant, [Ms D], learns of the applicant’s plan to marry and has the opportunity to speak to the sponsor by telephone. After the marriage [Ms D] states that she interacts with the parties at her home and other social functions.  This declaration again offers no insight into the development of the relationship or any evidence to support her belief that  the claimed relationship is genuine and continuing.

31. The Departmental file contains a few photographs of the parties with family and friends. Having reviewed both the Departmental and Tribunal files, the Tribunal would expect to see more photographs of togetherness with friends and family in attendance and generally more evidence of the parties’ social interactions as a couple.  On balance, the Tribunal is not satisfied there is before it persuasive evidence of this aspect of the claimed relationship.

32. Notwithstanding the aforementioned material, there is no evidence before the Tribunal to confirm whether the parties still represent themselves to other people as being married to each other, what the current opinions of their friends and acquaintances might be about the nature of their relationship, or the basis on which the parties plan and undertake joint social activities. Accordingly, the Tribunal places no weight upon the evidence in support of the social aspects of the relationship at the time of this decision.

    Nature of persons’ commitment to each other

33. Under this aspect of the relationship, the Tribunal has considered the circumstances of a couple’s meeting, relationship development, length of time they have lived together, the degree of companionship and emotional support that they claim to draw from each other and whether you see the relationship as a long-term one.

34. The Departmental file contains phone records and message logs indicating contact between the applicant and the sponsor prior to the visa refusal decision. It also contains the Victorian Marriage Certificate indicating they were married to each other [in] May 2015. As indicated above, there is evidence to suggest that the parties’ shared accommodation prior to the applicant departing Australia [in] May 2016. However, there is no contemporary evidence to indicate that the relationship is ongoing, or that the parties’ continue to derive companionship and emotional support from each other, or that they currently see the relationship as a long term one. Upon careful consideration, the Tribunal finds there to be a paucity of evidence in support of the nature of the persons’ commitment to each other at the time of this decision and accordingly the Tribunal affords no weight to the evidence in relation to this aspect of the relationship.   

    Conclusion concerning the spousal relationship

35. The Tribunal is satisfied that the applicant and sponsor were married to each other [in] May 2015. However, having regard to the above matters, the Tribunal is not satisfied that the applicant and the sponsor currently have a mutual commitment to a shared life as husband and wife to the exclusion of all others, or that the relationship between them remains genuine and continuing. The Tribunal is not satisfied that they live together, or do not live separately and apart on a permanent basis, at the time of this decision. The Tribunal is therefore not satisfied that the requirements of s.5F(2)(b)-(d) of the Act are met at the time of this decision.

36. Given these findings, the Tribunal is not satisfied that at the time of this decision that the  applicant and sponsor are in a spousal relationship as defined in the Act. Therefore, the  applicant does not meet the requirements of cl.309.221 and cl.309.223. For completeness, the Tribunal finds that the applicant does not meet the requirements of cl.309.224 given that he was married to the sponsor at the time of application.

37. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

38. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Stephen Conwell
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).