Atkinson (Migration)

[2021] AATA 3261

Atkinson (Migration) [2021] AATA 3261 (19 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Joanna Elizabeth Atkinson

CASE NUMBER:  1838062

HOME AFFAIRS REFERENCE(S):          BCC2017/4918822

MEMBER:Meredith Jackson

DATE:19 August 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 19 August 2021 at 1:01pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – sponsorship withdrawn – no current evidence of joint financial resources – no evidence of social recognition of the relationship – decision under review affirmed 

LEGISLATION

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

CASES

Hasran v MIAC [2010] FCAFC 40
He v MIBP [2017] FCAFC 206

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 Ms Joanna Elizabeth Atkinson, applied for the visa on 22 December 2017 on the basis of her relationship with her sponsor, Leslie Robert Hamilton Noble, an Australian citizen. 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 the delegate found the evidence and information provided in relation to the matters prescribed under regulations 1.15A and 1.09A was not sufficient to demonstrate that the applicant is the spouse or de facto partner of the sponsor as defined under section 5F and 5CB of the Act. The delegate found the applicant did not meet subclause 820.211(2)(a) of the Regulations and consequently did not meet clause 820.211, which is a criterion that must be satisfied at the time of application.

4.    The applicant was represented in relation to the review by her registered migration agent.

5.    On 15 January 2020 the Tribunal received information from records held by the Department of Home Affairs, being information from the sponsor that his relationship with the applicant had ended in January 2020.

6.    On 16 July 2021, the Tribunal wrote to the applicant via her representative, inviting the applicant to comment or respond to certain information which the Tribunal considered would, subject to her comments or response, be the reason, or a part of the reason, for affirming the decision under review. The Tribunal said it had not made up its mind about the information. The particulars of the information, the Tribunal stated, were that information on the Department’s file indicates that her relationship with the sponsoring partner has ended. The Tribunal stated, in summary, that the information is relevant to the review because the Tribunal may conclude that at the time of this decision, she is no longer the spouse or de facto partner of the sponsor; and, if the applicant did not meet any of the alternative criteria for the grant of the visa, the Tribunal may affirm the decision. The Tribunal outlined the relevant exceptions and invited the applicant to comment by 30 July 2021. The Tribunal stated that an extension of time may be considered if requested. The Tribunal stated that the consequences of not responding were that the Tribunal may make a decision on the review without taking any further action to obtain her views on the information and that she would lose her entitlement to appear at a hearing to give evidence. The Tribunal is satisfied that this invitation was properly sent to the applicant through her nominated representative. The applicant failed to provide the information within the prescribed time for responding to the invitation. No response to its invitation has been received by the Tribunal.

7.    Where an applicant is invited to provide further information in accordance with subsection 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 359C(1) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with subsection 360(3) of the Act. Of note, the effect of section 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

8.    After careful consideration, the Tribunal has proceeded to make a decision on the information and evidence before the Tribunal.

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

BACKGROUND

1. Ms Joanna Elizabeth Atkinson is a 50 year old national of the United Kingdom. Mr Leslie Robert Hamilton Noble is a 63 year old Australian citizen. The applicant applied for the Partner visa on the basis of being in a spousal relationship with the sponsor. As detailed above, the Department of Home Affairs on 8 January 2020 received advice from the sponsor that the relationship had ended and the applicant was “out of his life”.

ISSUES AND LAW

1. There is a two stage process for Partner visas. An applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. The issue in the present case is whether the applicant is at the time of this decision the applicant is the spouse of the sponsor.

Whether the parties are in a spouse or de facto relationship

1. 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. 

2. ‘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 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?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided with the visa application a Certified Copy of an Entry of Marriage pursuant to a marriage on 7 October 2017 under the Marriage Act 1949 of the United Kingdom of Great Britain and Northern Ireland. 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).

Is the applicant sponsored?

1. As indicated above, on 15 January 2020 the Tribunal received information from records held by the Department of Home Affairs, being advice from the sponsor that his relationship with the applicant had ended. In hand-written advice received on 8 January 2020, the sponsor indicated that he and the applicant had separated on 1 January 2020 and “at this stage” the applicant still lived at the unit they shared. He stated that what happens now is that “she is out of my life … finished”. The Tribunal is satisfied the letter was from the sponsor and that the handwriting and signature on the letter match that of the sponsor in identity documents provided with the visa application. The Tribunal having considered the information provided to the Department accepts that the sponsor has withdrawn his sponsorship of the applicant and that the applicant is not sponsored as required

Consideration of evidence before the Tribunal

1. The Tribunal had regard to all of the evidence before it concerning the time of application and the time of decision. The Tribunal notes that material including, but not limited to, the visa application form, sponsorship form, Form 80 Character Assessment Form, wedding and other photographs, identity documents, travel documents, Form 888 Statutory Declaration, Form SP40 sponsorship statement, applicant’s personal statements, divorce record for the sponsor and his former wife, death record for the applicant’s former husband, financial records, Police Certificate for immigration purposes for the applicant and National Police Certificate of disclosable court outcomes for five offences by the sponsor, were variously submitted by the applicant and sponsor to the Department. The Tribunal notes that no documentary evidence concerning the claimed relationship between the parties, other than a copy of the visa refusal decision, was submitted to the Tribunal by the applicant or sponsor. Further, due to the lack of response to the invitation issued pursuant to subsection 359(2) of the Act, as described above, the Tribunal was unable to invite the applicant to a review hearing and accordingly had no oral evidence before it.  

Circumstances of the relationship

1. The Tribunal has considered all of the circumstances of the relationship, including the following matters, in making a decision as to whether a spousal relationship exists between the parties.

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.

1. There is no probative evidence before the Tribunal regarding the contemporary financial aspects of the relationship between the applicant and the sponsor as at the time of this decision. While the Tribunal accepts that there is a small amount of evidence regarding the financial aspects of the relationship prior to the visa refusal decision, that of the first page of a joint lease agreement for a unit at Urangan, Queensland, the sponsor nominated a different address for the applicant, and a further and different address for himself, in his advice to the Department that the relationship has ended. There is no past or 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. 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 – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

1. There is no probative documentary evidence before the Tribunal concerning the nature of the household of the parties’ relevant to the time of this decision. The Tribunal accepts that evidence including, but not limited to, statements from third parties, a part of a tenancy agreement listing the same address for the applicant and the sponsor, points to them having cohabitated at a time prior to the visa refusal decision. However, there is no contemporary evidence to suggest that they now do so or that they currently share the responsibilities of a household, the care of children or housework. After careful consideration, the Tribunal affords no weight to the evidence in support of the nature of the household at the time of this decision.

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.

1. 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 and photographs were provided that are broadly suggestive of the parties previously having engaged in social activities together and having represented themselves to others as a couple. The applicant claims they visited one another in their respective countries and met members of each other’s family. However, there is no evidence before the Tribunal indicating that the parties still represent themselves to other people as being in spousal relationship or currently plan and undertake joint social activities. In addition, there is no evidence as to the current opinions of their friends and acquaintances concerning the nature of their relationship. Accordingly, the Tribunal places no weight upon the evidence in support of the social aspects of the relationship as relevant to the time of this decision. Further, as previously indicated, the sponsor in January 2020 advised that the relationship had ended and that the applicant would be moving out of premises they shared, while he cited a different address for himself. Following careful consideration, the Tribunal places high weight upon this evidence provided by the applicant as an indication that the relationship between the applicant and the sponsor has concluded. 

Nature of persons' 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.

1. The Departmental file contains personal statements from the applicant and the sponsor indicating that at a point prior to the visa refusal decision they drew companionship and emotional support from each other and that for a period before their marriage and beyond, they viewed the relationship as long term. However, there was no evidence before the Tribunal to demonstrate that the aforementioned commitment is continuing at the time of this decision, or that the relationship is still continuing at all. Following careful consideration, the Tribunal finds there to be no probative 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 this aspect of the relationship. The Tribunal is mindful that the sponsor has withdrawn his visa sponsorship and the Tribunal places significant weight upon this evidence as an indication that the relationship between the applicant and the sponsor has concluded. 

Any other circumstances of the relationship.

1. There is no information concerning other circumstances of the relationship that is before the Tribunal at the time of this decision.

Conclusion

1. The Tribunal is satisfied that the applicant and the sponsor are not related to each other. The Tribunal is not satisfied that the applicant and the sponsor currently have a mutual commitment to a shared life 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)(a)-(d) of the Act are met at the time of this decision.

2. Given these findings, the Tribunal is not satisfied that at the time of this decision Ms Joanna Elizabeth Atkinson and Mr Leslie Robert Hamilton Noble are in a spousal relationship as defined in the Act. Therefore Ms Atkinson does not meet the requirements of sub-clause 820.221(1)(a) which requires that she continue to satisfy the criteria in clause 820.211 at the time of this decision, unless the relationship has ceased and certain circumstances exist (concerning death of the sponsor, family violence and parental responsibilities). No evidence of such circumstances is before the Tribunal. Further, the Tribunal is not satisfied that the visa sponsorship is still in force at the time of this decision. It follows that Ms Atkinson does not satisfy any of the requirements of clause 820.221.

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

DECISION

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

Meredith Jackson
Member

ATTACHMENT - Extract from Migration Regulations 1994

1.15A     Spouse

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).

1. 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.

2. 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).