2204277 (Migration)

[2024] AATA 3124

2204277 (Migration) [2024] AATA 3124 (8 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Alan Dino Duri (MARN: 1684393)

CASE NUMBER:  2204277

MEMBER:Margie Bourke

DATE:8 August 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 08 August 2024 at 1:47pm.

CATCHWORDS 
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – relationship ceased – did not experience any physical family violence committed by the sponsoring partner – did not intend to obtain any evidence to support a claim for family violence – applicant does not meet the time of decision requirements of cl.820.221 – decision under review affirmed      

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cls 820.211, 820.221

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 31 March 2020 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 did not satisfy cl.820.221 because the delegate was not satisfied the applicant was in a genuine relationship with the sponsor prior to the relationship ceasing.

4. The applicant appeared before the Tribunal on 8 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant had been represented in relation to the review prior to the hearing. The representative did not attend the hearing. The applicant stated she understood the representative was not going to attend the hearing, and that she was comfortable to proceed without the representative in the hearing. The Tribunal advised the applicant that the representative could be contacted by telephone at any time, if the applicant required, and the representative could participate in the hearing by telephone if the applicant required.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the time of decision requirements in cl.820.221.

8. Clause 820.221 requires that an applicant continues to meet the time of application requirements in the applicable subclause in 820.211. Alternatively the applicant can meet the requirements of cl.820.221 in circumstances where the sponsoring partner has died, where the applicant or a dependent child of the sponsoring partner or of the applicant or both of them has suffered family violence committed by the sponsoring partner, or where the applicant and/or the sponsor have court orders or obligations as set out in the legislation in relation to a child.

9. The applicant was not represented, and the applicant was on occasion teary and presented as quite fragile. The Tribunal was careful to ensure the applicant understood all the questions asked of her. The Tribunal was careful to ensure the applicant understood that she could contact her representative, or could have time to provide further evidence if she wished. The Tribunal is satisfied that the applicant gave clear and comprehensive evidence, and did not wish to provide any further documentary evidence in relation to the review.

10. The applicant stated that the relationship between herself and the sponsoring partner ceased in September 2020. I am satisfied that the applicant does not continue to be in a de facto relationship with the sponsoring partner at the time of decision.

11. I am satisfied that the applicant does not meet the requirements of cl.820.221(1)(a).

12. The applicant stated that the sponsoring partner was not deceased.

13. The applicant stated that neither she nor the sponsoring partner had any court orders or obligations in relation to a child.

14. The applicant stated that she did not know whether she had suffered family violence committed by the sponsoring partner. The applicant stated she did not experience any physical family violence committed by the sponsoring partner. The Tribunal discussed with the applicant that family violence can take many forms. The applicant stated there are no court orders, convictions or intervention orders or injunctions in relation to family violence perpetrated by the sponsoring partner on herself. The applicant stated she had not provided a statutory declaration or obtained statutory declarations or reports from any other person in relation to her experiences with the sponsoring partner.

15. The applicant stated she did not intend to obtain any evidence to support a claim for family violence and did not intend to provide evidence to meet the evidentiary requirements for a claim of family violence. The applicant stated she understood that this would mean she did not meet any of the alternative criteria in the legislation for when a relationship had ceased.

16. I am satisfied that there is no evidence before the tribunal that the applicant meets any of the alternative requirements provided for the circumstances when a partner relationship has ceased as set out in cl.820.221(2) and (3). Accordingly, I am satisfied that the applicant does not meet the requirements of cl.820.221(1)(b).

17. For the above reasons I am satisfied the applicant does not meet the time of decision requirements of cl.820.221.

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

    DECISION

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

    Margie Bourke
    Senior 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).