Adair (Migration)

[2022] AATA 1578

Adair (Migration) [2022] AATA 1578 (21 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Laurel Adair

CASE NUMBER:  1926210

HOME AFFAIRS REFERENCE(S):          BCC2018/2038386

MEMBER:Maxina Martellotta

DATE:21 February 2022

PLACE OF DECISION:  Perth

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

Statement made on 21 February 2022 at 11:45am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – applicant failed to provide requested information – at the time of decision there is no continuing relationship between the applicant and sponsor – relationship had ended – decision under review affirmed   

LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 360, 363
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221

CASES
Hasran v MIAC [2010] FCAFC 40
He v MIBP [2017] FCAFC 20

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 10 May 2018 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 820.211(2)(a) of the regulations because there was insufficient evidence to demonstrate that the applicant is the spouse or defacto of the sponsor.

   Procedural matters

4. On 15 December 2021 the Tribunal wrote to the applicant inviting her to comment on or respond to information. This related to a certificate said to be made pursuant to section 376 of the Act and also in relation to adverse information which subject to her comments or response would be the reason or a part of the reason for affirming the decision under review (section 359A of the Act). That adverse information was that the spousal relationship had ended.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 4 January 2022 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement, she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant did not provide  comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit her to appear: Hasran v MIAC [2010] FCAFC 40.

7. The Tribunal allowed the respondent until 15 January 2022 to present any further information before making its decision.  On 7 January 2022 the Tribunal received an email sent by the applicant attaching a copy of the delegate’s decision record and advising that she did not receive the previous emails due to being at wedding which had poor internet reception and it was only on searching that she discovered the missed emails.

8. On 13 January 2022 the applicant emailed the Tribunal requesting further time to provide information. The Tribunal provided the applicant an extension of time to 27 January 2022. On 27 January 2022 the applicant provided written submissions. In those submissions the applicant advised she was planning to withdraw her application to the Tribunal. In response the Tribunal provided the applicant with relevant information and forms for a withdrawal. In response the applicant advised she was applying for another visa and wanted to delay lodging her withdrawal until after that application was made. In response the Tribunal advised that if the absence of any further advice by close of business on 9 February 2022 the Tribunal would proceed to make decision. As no withdrawal or further information was received the Tribunal made a decision on the application.

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 at the time of application and at the time of decision the applicant is in a spouse or defacto relationship.

    Whether the parties are in a spouse or de facto relationship

11. Clauses 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 spouse of the sponsor who is an Australian citizen.

12. ‘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: s 5F(2)(a)-(d):

    (2)  For the purposes of subsection (1), persons are in a married relationship if:

    (a)  they are married to each other under a marriage that is valid for the purposes of this Act; and

    (b)  they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

    (c)  the relationship between them is genuine and continuing; and

    (d)  they:

    (i)  live together; or

    (ii)  do not live separately and apart on a permanent basis.

13. In forming an opinion about these matters, regard must be had to all 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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and sponsor were married on 13 April 2018. As part of her visa application the applicant submitted a certified copy of a Marriage Certificate issued by the Registrar of Births, Deaths and Marriages for Western Australia dated 30 April 2018. The certificate records and the Tribunal finds that the parties were married on that date at the Registry of Births, Deaths and Marriages, Perth, Western Australia.  The Tribunal is satisfied 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?

15. According to materials provided to the Department as part of her visa application the applicant is a citizen of the United States and met the sponsor on 25 August 2017 they married on 13 April 2018.

16. According to the written submissions provided by the applicant on 27 January 2022 at the time of her visa application she and the sponsor were in a genuine spouse relationship however their relationship has since broken down and in March 2020 the sponsor took up employment in another state (Victoria) whilst she remained in Western Australia. The applicant states that she is no longer in the relationship.

17. The Tribunal has considered the available evidence relevant to the specific matters contained in reg 1.15A(3) including the written submissions provided by the applicant.

18. Financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses. The Tribunal finds as follows:

    a)At the time of application and at the time of decision the applicant and sponsor did not jointly owned assets or property nor did they hold any joint liabilities.

    b)At the time of application, the applicant and sponsor held a joint bank account which they mainly utilised for entertainment and nights out. They sometimes utilised that account for payment of rent and utilities. They otherwise kept their finances separate due to work and taxation requirements.

    c)There is no evidence that at the time of decision the applicant and sponsor have maintained any joint account or that they share day to day household expenses or that there are any legal obligations owed to the other party.

19. Nature of the household - including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework. The Tribunal finds as follows:

    a)The applicant moved into the sponsors rental property in March 2018. They jointly rented a property in September 2018. At the time of application, they were sharing a rental property.

    b)When they were living together the applicant and sponsor shared household tasks such as cleaning and cooking.

    c)In March 2020 the sponsor accepted employment and moved interstate. Since then, the applicant and sponsor have not lived in the same household. At the time of decision, the applicant and sponsor are no longer living together and live in different states.

    d)There is no evidence that at the date of application or date of decision the applicant and sponsor held any joint responsibility for the care and support of children.

20. Social aspects of the relationship- including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

    a)As part of her application the applicant provided photographs of the wedding and of cards offering congratulations. The wedding photographs also show members of the sponsors family celebrating the event.

    b)The applicant also provided in support of her visa application photographs of the applicant and sponsor at various social events together with friends.

    c)In support of her application the applicant provided two statutory declarations from friends who declare that in their opinion the relationship between the applicant and sponsor is genuine and continuing.

    d)At the time of application, the applicant and sponsor held themselves out as married.

    e)Since the applicant and sponsor separating and at the time of decision there is no evidence demonstrating any social aspects of the relationship.

21. Nature of person’s commitment to each other - including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term. The Tribunal finds that:

    a)At the time of application, the applicant and sponsor had been living together since March 2018 and married since April 2018 a period of about two months.

    b)In support of her application the applicant and sponsor made written statements regarding their long-term commitment to each other and the emotional support they provide each other.

    c)As at the time of decision the applicant and sponsor are no longer in a relationship. The applicant in written submission states that in all honesty they rushed into the marriage and whilst at the time of application their belief and intention was to remain in the relationship it did not work out this way.

    d)The applicant states that she became pregnant in September 2018, but the sponsor did not want to have children.  The pregnancy was terminated.  The applicant described that due to these personal issues and differences they started to drift apart from October 2018. Ultimately this resulted in the sponsor moving interstate in March 2020.   Since then, the applicant has focused upon other aspects of her life and work. The applicant states that she wishes the sponsor future happiness and hopes he can overcome his issues.

22. In this matter it is clear that as at the time of decision there is no continuing relationship between the applicant and sponsor. The Tribunal notes that there are limited exceptions to the requirement of a continuing relationship namely:

    ·the relationship has ceased because the sponsoring partner has died.

    ·the sponsoring partner has committed domestic/family violence against the applicant or a member of the family unit of the applicant; or

    ·both the applicant and the sponsoring partner have an ongoing connection to a child.

23. In this matter there is no evidence to support a finding that any of these exceptions have occurred.

24. The evidence in this matter is that after meeting the applicant and sponsor quickly moved to the decision to get married. There is evidence that as at the time of the visa application the applicant and sponsor were married, they were living together, sharing household tasks and sharing some finances and jointly paying bills such as the rent. There is some evidence that they were recognised as being a couple who were in a committed relationship by family and friends.

25. However, the evidence also shows that not long after their marriage (in April 2018) the relationship was starting to deteriorate by October 2018.  There is no clear evidence regarding the relationship circumstances in the period between October 2018 and March 2020 when the sponsor moved interstate on his own. The Tribunal notes that adverse information was provided to the Department in July 2019 regarding the status of the relationship this suggests that the relationship had ended before March 2020. In any event it is clear that as of the date of this decision, the relationship has ended. The applicant in written submissions says that at the time of application she and the sponsor were in a genuine and committed relationship however, she recognises that they probably rushed into the relationship and that ultimately, they were unable to reconcile some fundamental differences.

26. For these reasons the Tribunal is satisfied that whilst at the time the visa application was made the requirements of subsection 5F (2) were met the Tribunal is not satisfied that as at the time of decision the requirements subsection 5F (2) are met.  Therefore, the applicant does not meet regulation 820.221.

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

    DECISION

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

    Maxina Martellotta
    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).