Boyce (Migration) - [2018] AATA 4874

Boyce (Migration) [2018] AATA 4874 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Peter Rodney Boyce
CASE NUMBER:  1704951
DIBP REFERENCE(S):  CLF2011/95476
MEMBER:Ian Garnham
DATE:23 October 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 23 October 2018 at 2:57pm

CATCHWORDS
MIGRATION – Federal Circuit Court remittal – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – de facto relationship – breakdown of relationship – transfer of funds to sponsor – non-judicially determined family violence claim – no evidence submitted – decision under review affirmed
PRACTICE AND PROCEDURE – visa applicant offshore – declined hearing invitation
LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 60
Migration Regulations 1994 (Cth) rr 1.09A, 1.23 1.24 Schedule 2 cl 801.221
CASES
Dang v Minister for Immigration [2016] FCCA 1426

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 September 2013 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 14 June 2011 on the basis of his relationship with his sponsor, Ms Hammond. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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. Relevantly to this matter the primary criteria include cl.801.221.
On 17 February 2012 the Department of Immigration and Border Protection (DIBP) granted the visa applicant a subclass 820 temporary partner visa.
On 4 September 2013 the delegate refused to grant the subclass 801 permanent partner visa on the basis that the applicant did not satisfy cl.801.221 because they did not provide any information to reach a view that any of the requirements of this clause were met by the review applicant’s circumstances.
On 10 December 2013 the visa applicant applied to the predecessor of this tribunal (MRT[1]) for review of the delegate’s decision.
[1] Migration Review Tribunal
The applicant appeared before the MRT (differently constituted) on 4 June 2014 to give evidence and present arguments (the hearing). At the hearing the visa applicant sought to argue that he met cl. 801.221(6) of the legislation.
On 25 June 2014 the MRT affirmed the decision under review (1313408). The visa applicant sought judicial review of this decision.
On 1 February 2017 the Federal Circuit Court of Australia (FCCA)[2] remitted this matter to this tribunal for determination according to law.
[2] BOYCE v Minister for Immigration & ANOR [2017] FCCA 16
The Court found that the tribunal had erred in its application of cl.801.221 because…

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: [2018] AATA 4874
Decision Date: 23 October 2018

CaseChat Overview and Summary

The Federal Circuit Court considered an appeal by a visa applicant against a decision to affirm the refusal of a Partner (Residence) (Class BS) visa. The applicant had been granted a temporary Subclass 820 visa and sought to transition to a permanent Subclass 801 visa. The core of the dispute concerned whether the applicant and their sponsor were still in a de facto relationship at the time of the decision, as required by the legislation.

The legal issues before the Court were whether the applicant met the criteria for a Partner (Residence) (Class BS) visa, specifically whether they were in a de facto relationship with the sponsoring partner at the time of the decision, and whether the Tribunal had erred in affirming the delegate's decision to refuse the visa. The Tribunal was required to consider all circumstances of the relationship, including financial, household, social aspects, and the nature of the commitment to each other, as outlined in regulation 1.09A of the Migration Regulations 1994.

The Tribunal affirmed the decision to refuse the visa, finding that the applicant did not satisfy the criteria under cl.801.221. This conclusion was based on information received indicating the relationship had failed over 18 months prior to the delegate's decision, and the applicant had subsequently confirmed to the delegate that the relationship had ended. The Tribunal noted that the applicant had not provided evidence to demonstrate a continuing de facto relationship, nor had they provided evidence in response to requests for information from the delegate. The Court's decision was that the Tribunal's affirmation of the delegate's decision was correct.

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 EVIDENCESPOUSE/DEFACTO (cl.801.221(2))Whether the parties were in a spouse or de facto relationship Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claimed to be the de facto partner of the sponsor who is an Australian permanent resident and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor was the ‘sponsoring partner’ of the applicant.Were the parties in a de facto relationship? As the parties are not validly married, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2). In forming an opinion whether they are in a de facto relationship, consideration must be given 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 r.1.09A(3) which is attached to this decision. It is not in dispute in this case, that the relationship between the visa applicant and his sponsor, (if it ever existed) has long since ended. The central issue is whether the visa applicant meets cl.801.221 of the legislation. To do so an applicant must meet any one of the available subclauses: 801.221 (1)The applicant meets the requirements of subclause (2), (2A), (3), (4), (5), (6) or (8). After lodging the application on 14 June 2011 DIBP granted the visa applicant a temporary subclass 820 visa to the visa applicant on 17 February 2012. On 17/06/2013 DIBP received information that indicated the relationship had failed over 18 months ago (January 2012) and that the parties were pretending that the relationship was still ongoing to achieve a permanent migration outcome for the visa applicant. On 15 July 2013 the delegate contacted the visa applicant by telephone about this information; she has recorded the visa applicant as stating that he was no longer in a relationship with his sponsor and that he would get his new registered migration agent to contact the delegate. On 19 July 2013 the delegate wrote to the visa applicant seeking information or comments about this information. A reminder letter was also sent to the visa applicant 23 August 2013.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa because they cannot satisfy cl.801.221.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.Ian GarnhamMemberATTACHMENT - 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 (Residence) (Class BS) visa.Ian GarnhamMemberATTACHMENT - 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).