Davis (Migration) - [2024] ARTA 641

DAVIS (MIGRATION) [2024] ARTA 641 (31 OCTOBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Samuel Michael Davis
Visa Applicant:  Mrs Maricel Bonifacio Davis
Respondent:  Minister for Home Affairs
Tribunal Number:  2113488

Tribunal:General Member T Downes
Place:Brisbane
Date: 31 October 2024
Decision:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

General Member T Downes
Statement made on 31 October 2024 at 3:41PM

STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 September 2021 to refuse to grant the visa applicant (applicant) a Partner (Provisional) (Class UF) Subclass 309 visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 8 December 2020 based her relationship with her sponsor, the review applicant (the sponsor). At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the visa on the basis that the applicant did not satisfy

cl 309.211(2) and cl 309.221 of Schedule 2 to the Regulations because the delegate was not satisfied based on the information and evidence before them that the applicant was the ‘spouse’ of the sponsor, within the meaning of the Act.
The matter was initially heard on 21 August 2024. The sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s mother. The applicant and the applicant’s mother also attended the hearing via Microsoft Teams but the Tribunal did not receive evidence from them because I decided to adjourn the matter part-heard after the representative conceded to the effect that he was in possession of material evidence that had not been submitted to the Tribunal, including a large volume of photographs and statutory declarations from supporting witnesses.
The sponsor and the representative submitted a significant volume of material following the first hearing. The Tribunal requested additional material from the applicant and the sponsor and granted an extension of time for the provision of this material, some of which was ultimately not provided.
The matter was listed for a second hearing on 30 October 2024. The Tribunal received oral evidence from the sponsor’s mother and the applicant’s mother. The sponsor appeared at the second hearing through his representative and did not appear in person due to work commitments. The applicant did not attend the second hearing because it was claimed to the effect that she is missing. Two additional witnesses attended the second hearing but the Tribunal was unable to take their evidence because of time constraints. I do not consider that this adversely affected the applicant or the sponsor’s interests for the reasons set out elsewhere in this decision.
Before the second hearing, the representative contacted the…

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: [2024] ARTA 641
Decision Date: 31 October 2024

CaseChat Overview and Summary

In the matter of Davis (Migration), the applicant, a 38-year-old woman from the Philippines, sought a Partner (Provisional) (Class UF) visa. The sponsor, a 33-year-old Australian citizen, supported her application. The Tribunal was tasked with determining whether the applicant met the criteria for the visa, particularly focusing on the nature of the relationship between the applicant and the sponsor. The case involved the assessment of the relationship's financial, social, and commitment aspects, as stipulated in the Migration Regulations 1994.

The primary legal issue was whether the applicant's relationship with the sponsor met the requirements outlined in the regulations. This involved examining the financial interdependence, the nature of their household, the social recognition of their relationship, and the depth of their commitment. The Tribunal had to consider if the relationship was genuine and ongoing, as well as whether the applicant and sponsor had met the threshold for a provisional visa.

The Tribunal found that the applicant failed to provide sufficient evidence to demonstrate that her relationship with the sponsor met the statutory criteria. The evidence presented showed limited interaction due to the COVID-19 pandemic, work commitments, and time zone differences. The Tribunal emphasised that it was not their role to supplement gaps in the evidence. The application was denied based on the lack of satisfactory evidence demonstrating the genuineness and continuity of the relationship.

The Tribunal affirmed the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa. The applicant was given the opportunity to present oral and documentary evidence, but the Tribunal concluded that the evidence did not meet the required standard. The Tribunal's decision was based on the absence of sufficient evidence to support the applicant's claims regarding the nature and continuity of her relationship with the sponsor.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In forming an opinion about these matters, the Tribunal must have regard to all the circumstances of the relationship, including the financial and social aspects of the relationship, the nature of the applicant and sponsor’s household and their commitments 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.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a 38-year-old woman from the Philippines who lives in the United Arab Emirates. She claims to be in a relationship with the sponsor, a 33-year-old Australia citizen by birth. The applicant has one 16-year-old child from a previous relationship, who lives in the Philippines with the applicant’s mother. The couple claim to have met online in October 2012 and to have first met in person in May 2013 in the Philippines. They claim to have become engaged in April 2015 and to have married in December 2015 in the Philippines. They claim to have spent time together again in Australia in 2017 and in the Philippines in 2018. The couple claim to have not seen each other since 2018, a period of six years. They claim that this is due to the COVID-19 pandemic, the applicant having been refused tourist visas to visit Australia, and the sponsor not having the financial capacity or annual leave accruals to travel overseas to visit the applicant. Previously, the couple have claimed to have been in daily contact via Facebook, messenger and BOTIM. The current evidence, however, is to the effect that it is difficult for the applicant and the sponsor to make time to talk because of work commitments and time zones, the applicant often takes three or four days to respond to the sponsor’s messages and the sponsor has had no contact from the applicant since 24 September 2024, a period of some five weeks. It is apparent from the sponsor and the sponsor’s mother’s oral evidence and statutory declarations that they feel aggrieved by department’s processes and decisions in respect of the partner and visitor visa applications, and by the review application process. While the Tribunal acknowledges these feelings, they do not alleviate the need for the applicant and the sponsor to demonstrate that their relationship meets the requirements of the Act. It has been held that ‘the “core function” of the Tribunal is the reviewing on the merits of an administrative decision’. It is not the Tribunal’s role to fill in any gaps in the applicant’s case or to make out the applicant’s case for them. A party seeking a particular outcome is required to put forward the material necessary to support that outcome, and the Tribunal has a duty to base its decision on evidence: Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264, 20-30. I have carefully considered all the oral and documentary evidence before me. I note that very little evidence was submitted to the department to support the visa application, which necessarily lead to the application being refused. The delegate’s decision clearly sets out the reasons for the refusal, including the deficiencies in the evidence provided.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISIONThe Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.Date(s) of hearing: 21 August 2024 and 30 October 2024Representative for the Applicant: Mr Russell TienATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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