Chinyerere (Migration)

[2020] AATA 3227

Chinyerere (Migration) [2020] AATA 3227 (5 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Felix Rufaro Chinyerere

CASE NUMBER:  2000873

HOME AFFAIRS REFERENCE(S):          BCC2018/4331772

MEMBER:Hugh Sanderson

DATE:5 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 5 June 2020 at 10:35am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – sponsor had withdrawn her sponsorship – relationship had ended –applicant failed to provide requested information – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 801.211, 820.211, 820.221

CASES
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 (the Act).

2. The applicant applied for the visa on 5 October 2018 on the basis of his relationship with his 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 (the Regulations).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221 because the delegate found the sponsor had withdrawn her sponsorship of the application and the parties were no longer in the continuing relationship. Further, the delegate found that as the applicant did not hold a Subclass 820 Partner (Temporary) visa he did not meet criteria in cl.801.221 for the grant of the Subclass 801 Partner (Permanent) visa.

   Background

4. The applicant is a citizen of Zimbabwe. He was sponsored in his application by Trewhit Tshuma who was born in Zimbabwe and is an Australian citizen. They were married on 15 November 2016. The applicant applied for the Partner visa on 5 October 2018. Various documents were provided in support of that application.

5. On 31 May 2019 the sponsor contacted the Department and advised the Department that her relationship with the applicant had ended and she wanted to withdraw her sponsorship of the application.

6. On 22 November 2019 the Department wrote to the applicant advising him that they had information that is relationship with the sponsor had ended and that she had withdrawn her sponsorship. He was advised of the circumstances whereby if his relationship with his sponsor had ended he may still be entitled to the grant of a Partner visa. The applicant was requested to respond to this information within 28 days. No response was received by the Department from the applicant to this information.

7. The delegate who consider the application note of the following:

   ·For the grant of the Subclass 820 Partner (Temporary) visa the applicant must continue to be in a relationship with the sponsor at the time of the decision or certain other criteria must be met;

   ·The sponsor advised the Department on 31 May 2019 that they wanted to withdraw their sponsorship of the applicant as their relationship had ended;

   ·No response was received by the Department from the applicant to their request to respond to the information that the sponsor had withdrawn her sponsorship of the application or that their relationship had ended;

   ·The applicant did not provide further information to indicate he would meet any of the alternative criteria for the grant of the visa;

   ·No claim was made as to any family violence or the death of the sponsor; and

   ·Although there was previously a claim that there was a child of the relationship, the child’s birth certificate or any court order in respect of the child had not been provided and the delegate could not be satisfied that the applicant would meet this exception.

8. Based on these findings, the delegate found the applicant did not meet the time of decision criteria in cl.820.221 and therefore refused the application for the grant of the Subclass 820 Partner (Temporary) visa.

9. As the applicant had been refused the Subclass 820 Partner (Temporary) visa, the delegate found that the applicant did not meet the criteria in cl.801.221 for the grant of the Subclass 801 Partner (Permanent) visa. Accordingly, the delegate refused the application for the grant of the Subclass 801 Partner (Permanent) visa.

   Information to the Tribunal

10. The applicant applied for a review of the Department’s decision with the Tribunal on 18 January 2020. The applicant provided a copy of the Department’s decision to the Tribunal. The applicant in his application for a review stated that he would be sending more documents “very soon”. No further documents were provided by the applicant to the Tribunal.

11. The Tribunal wrote to the applicant pursuant to s.359(2) of the Act on 14 May 2020. It was noted that it was a requirement for the grant of the visa that at the time of the decision the applicant is the spouse or de facto partner of the sponsoring partner unless one of the exceptions applies. Those exceptions included the death of the sponsoring partner, family violence, and certain court orders or responsibilities in relation to children. The applicant was invited to provide information in writing that he was the spouse of the sponsoring partner at present or alternatively evidence that may be relevant to the exceptions. The applicant was required to respond to this invitation to provide information by 28 May 2020. The applicant was advised that if the Tribunal did not receive any information within the specified period that a decision may be made without taking any further action and he would lose any entitlement he would otherwise have had to have a hearing before the Tribunal. The invitation was sent to the applicant to the email address the applicant provided in his review application.

12. At the time of this decision, the Tribunal has not received any response from the applicant to this invitation to provide information.

13. As the applicant has failed to provide any response to the invitation to provide information the Tribunal has proceeded to a decision without the need of a hearing pursuant to s.359C.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant continues to be sponsored by the sponsoring partner or is in a continuing relationship with her. The Tribunal has also considered whether the applicant meets any of the alternative criteria for the grant of the visa.

    Whether the parties are in a spouse or de facto relationship

16. 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.

17. ‘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 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?

18. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married on 15 November 2016. There is nothing to indicate that the marriage between the parties is not valid. There is nothing to indicate that the parties have been divorced. 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?

19. The sponsor contacted the Department on 31 May 2019 and stated that she was withdrawing her sponsorship of the applicant and that their relationship had ended. The applicant was invited by the Department and the Tribunal to provide information in respect of his application as to any continuing relationship with the sponsor or that he met any of the alternative criteria. He has provided no further information.

20. There is no current information which would indicate the financial aspects supports a finding that the parties are in a continuing relationship. There is no information of any joint assets or liabilities or anything to indicate that the parties are currently pooling their financial resources.

21. There is nothing to indicate that the parties are living together. The sponsor has indicated that the relationship has ended and she is not living with the applicant. The applicant has not provided any information which would indicate the parties are living together or that there is any joint responsibility for the care and support of any children.

22. There is no information as to the current social aspects of the relationship. The sponsor has stated that she considers her relationship with the applicant as having ended. There is nothing to indicate that the parties represent themselves as being married to each other or that their relationship is recognised by their friends and family. There is nothing to indicate that they are participating in any social activities or have any continuing contact with each other. At the time of this decision, the parties do not show any commitment to each other or their relationship. The sponsor has withdrawn her sponsorship of the applicant and is not supporting his application.

23. The Tribunal is not satisfied that at the time of this decision the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing or that the parties are living together.

24. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant does not meet cl.820.221(1)(a).

25. The applicant was invited to provide information as to whether he met any of the alternative criteria relating to the death of the sponsor, family violence, or whether there are certain provisions relating to a child. The applicant has not provided any information which would indicate that he would meet any of the alternative criteria.

26. It is noted that in the original documents provided it was indicated that there is child of the relationship. No birth certificate or other information has been provided in respect of this child. There is no official indication that the applicant is the father of this child. The applicant has not provided any further information in respect of this child despite having being requested by both the Department and the Tribunal to provide information. The Tribunal is not satisfied that based on the limited information provided by the applicant at the time of the application that the applicant would meet the child exceptions in cl.820.221(3).

27. For the reasons above, the applicant does not satisfy the criteria for the grant of the Subclass 820 Partner (Temporary) visa.

28. As the applicant was refused the Subclass 820 Partner (Temporary) visa and this decision has now been affirmed by the Tribunal, the applicant is not the holder of a Subclass 820 Partner (Temporary) visa. Accordingly, the applicant does not meet any of the criteria in cl.801.221 for the grant of a Subclass 801 Partner (Permanent) visa. Accordingly, the Tribunal affirms the decision to refuse the applicant the grant of this visa.

    DECISION

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

    Hugh Sanderson
    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).

    (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).