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 Tribunal and requested to the effect that the Tribunal take evidence from the sponsor’s mother and other witnesses in lieu of the applicant or that the hearing be adjourned. The Tribunal informed the representative that it would consider the adjournment request and asked about the period of the adjournment requested. The representative subsequently notified the Tribunal that they wished to proceed with the proposed hearing date. They requested a later start time for the hearing, but this was unable to be accommodated by the Tribunal.
The sponsor was represented in relation to the review. The material submitted by the representative did not comply with Tribunal’s requirements and expectations set out in the Migration and Refugee Division Practice Direction, which applied at the date of the first hearing. This adversely affected the Tribunal’s ability to carry out its functions in accordance with its objects, as set out in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) and s 9 of the Administrative Review Tribunal Act 2024 (Cth).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUES AND LAW
This review application relates to an offshore application for a provisional partner visa to enable the applicant to come to Australia on a temporary basis.
The issues in this review application are whether, at the time the visa application was made, and at the time of this decision, the applicant was and is the spouse of an Australian citizen, for the purposes of cl 309.211(2)(a) and cl 309.221(1)(a) of Schedule 2 to the Regulations.
‘Spouse’ is defined in s 5F of the Act, which 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, 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 EVIDENCE
Background
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.
I note that the expectation for supporting evidence to be provided is clearly set out in, among other things, the sponsorship form which state:
In the following questions, details of the relationship between the applicant and sponsor must be provided and should form the basis of the applicant's claim that their relationship with their sponsor is genuine and continuing. The information provided also needs to be supported by relevant evidence. This evidence may be such things as photographs, receipts, bills, legal documents or anything else to demonstrate the nature of the relationship the applicant has with their sponsor. This evidence can be uploaded after the submission of this application.
There are significant gaps in the documentary evidence that has been filed with the Tribunal. However, on balance, I am satisfied that the requisite relationship existed at the time the application was made. If this information had been submitted to the department in the nine months following the making of the visa application, a favourable decision may have been made at that time.
While I am satisfied that the requisite relationship existed at the time of application, for the following reasons, I am not satisfied based on the material before me that such relationship continues at the time of my decision.
Are the parties validly married?
The couple submitted a marriage certificate issued by the Office of the Civil Registrar General of the Republic of Philippines certifying that the applicant and the sponsor were married on 28 December 2015 in Masantol, Pampanga.
Accordingly, pursuant to Part VA of the Marriage Act 1961 (Cth) and s 12 of the Act, in the absence of any evidence to the contrary, I am satisfied that the couple 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 married relationship met?
Financial aspects of the relationship
The couple do not claim, at the material times, to have any joint assets or joint liabilities, to pool their financial resources, to owe any legal obligations to the other party or to share day-to-day household expenses. I make findings accordingly.
I find that, at the material times, the financial aspects of the relationship are not indicative of a ‘married relationship’ as defined in the Act. However, I give this little weight in my overall assessment of the relationship given the couple live in different countries and have spent limited time together.
Nature of the household
The couple do not claim, at the material times, to live together or to share housework in a manner consistent with a genuine couple. I make findings accordingly.
The couple claim to have lived together briefly in Australia and in the Philippines and to have shared housework. I accept the sponsor’s written evidence to this effect at face value and find that the couple have lived together for short periods during their relationship.
The couple claim to share financial responsibility for the applicant’s child. Documentary evidence was provided to support this claim. Accordingly, I accept it as true. However, I note there is no evidence before the Tribunal as to how the parties otherwise care for or maintain a relationship with the applicant’s child. Therefore, I find that, at the material times, the couple do not share joint responsibility for the care and support of the applicant’s child.
Overall, I find that, at the material times, the nature of the household is not indicative of a ‘married relationship’ as the couple have only resided together briefly. However, I give this little weight in my overall assessment of the relationship given the couple live in different countries and have spent limited time together.
Social aspects of the relationship
There is some credible evidence before the Tribunal regarding the social aspects of the relationship: including Form 888 - Statutory declaration by a supporting witness in relation to a Partner or Prospective Marriage visa application from friends and family; photographs of the couple together with friends and family; emails exchanged between the applicant and the sponsor’s mother; invitations sent to the applicant and the sponsor; and statements said to have been provided in support of the visitor visa applications.
While this evidence is not voluminous, and the statutory declarations are very brief, on balance, it is sufficient, in conjunction with the sponsor’s written statement and the oral evidence provided, to satisfy me that, at the material times, the couple represent themselves to other people as being in a married relationship, that the couple’s family, friends and acquaintances believe the relationship between the couple to be genuine and continuing and that the couple plan and undertake joint social activities. Accordingly, I find that, at the material times, the social aspects of the relationship are consistent with a ‘married relationship’, as defined in the Act. Given this finding, I do not consider that the Tribunal’s inability to take evidence from the additional witnesses at the second hearing adversely affected the applicant or the sponsor’s interests.
Nature of persons’ commitment to each other
The couple has been married for eight years. They have only lived together briefly during their relationship.
There is credible evidence before the Tribunal that the sponsor has provided significant financial support to the applicant and her family, that the sponsor has taken steps to build a home for himself and the applicant in Australia (pending the applicant’s arrival) and that the sponsor and his family have made genuine efforts to attempt to reunite the couple in Australia on tourist visas. I have given this evidence significant weight.
The Tribunal is also, however, required to consider the degree of companionship and emotional support that the couple draws from each other and whether they see the relationship as long-term. I note with concern the sponsor’s statutory declaration dated 18 October 2024, which relevantly states:
I wish to declare that I have been having conversations with Maricel on Facebook messenger until about 24th September, however the chat has been set up as a private chat which deletes the conversation after 24 hours and I have not been using screenshots to show proof of our conversations. We also haven't been able to have regular conversations lately due to the 12 hour shift Maricel works, the 3 hours in travel to and from her work and the different time zones where she is 6 hours behind Australia's time also makes it difficult to work on making good times to chat. Due to these factors Maricel often takes 3 or 4 days before she has the energy to respond to messages. Maricel works 7 days a week. There are no known call logs for the calls between us in private mode.
…
My family and Maricel's family are concerned for Maricel's welfare as we have not had any communication with Maricel since at least 29th September 2024. This includes her mother, brothers, her daughter, my mother and I. Although we have all tried to constantly contact Maricel she has not seen or acknowledged any of our attempts by messenger. This is aforemost of concern to us all. We are unsure what to do but are considering contacting the authorities in Dubai to locate her and establish her well being.
The sponsor’s mother gave evidence at the second hearing that applicant’s work schedule changed in January, which is what contributed to challenges faced by the couple in maintaining contact. This leads the Tribunal to conclude that the couple may have had irregular contact and difficulties remaining in contact for approximately 10 months.
The sponsor’s mother gave evidence at the second hearing to the effect that: the sponsor and the applicant’s families had still not had contact from the applicant; they were concerned for her welfare; and they had not yet contacted the authorities because they might need to extract her from the country quickly and could not bring her to Australia until her visa was approved.
The visa applicant’s mother, however, gave evidence to the effect that: she had not spoken to the applicant since 21 August 2024 because the applicant is busy with work; sometimes the applicant does not speak with her for a month because she is busy, but she speaks with her daughter; the applicant last spoke with her daughter last Thursday.
I gave the sponsor’s mother the opportunity to respond to the applicant’s mother’s evidence that the applicant had spoken with her daughter the previous week. The sponsor’s mother stated to the effect that she was relieved that the applicant was alive but that she did not know if she was under duress.
The Act requires “a mutual commitment to a shared life as a married couple to the exclusion of all others”. While there is some evidence before the Tribunal as to the sponsor's commitment to the applicant at the time of this decision, the evidence before me does not support a positive finding about the applicant’s commitment to the relationship. In this regard, I note that:
a.There is no signed written evidence from the applicant since February 2022.
b.The evidence is that the applicant has not been in contact with the sponsor for five weeks. I also conclude from the sponsor’s evidence that their contact before this time was irregular.
c.While I acknowledge the sponsor and his mother’s concerns about the applicant’s welfare, they have not submitted any evidence to support their concerns.
d.In circumstances where the evidence is that the applicant was in contact with her daughter last week, and there is no objective evidence to otherwise support the sponsor’s concerns, I am not persuaded that there is a reasonable explanation for the applicant’s present failure to engage with the sponsor or these proceedings.
e.There are no contemporaneous records of the couple’s communications. While there are some older phone and message records, they are largely undated, are very brief, and do not support a finding that the couple draws companionship and emotional support from each other commensurate with a genuine relationship.
f.I acknowledge that the applicant appeared at the first tribunal hearing but that I adjourned the matter part-heard and did not take her evidence. While this decision has had some implications in the present circumstances, I do not consider that it has materially prejudiced the applicant and the sponsor in circumstances where the Tribunal was prepared to consider an adjournment of the second hearing, but the sponsor chose to continue with the second hearing.
In these circumstances, I find that, while these circumstances were met at the time of application, at the time of decision, the couple does not draw companionship and emotional support from each other commensurate with a married relationship and the applicant does not see the relationship as long term.
I find that, at the time of application, the nature of the commitment was indicative of a married relationship, as defined in the Act but, at the time of decision, it was not.
Conclusion
Having regard to the findings set out above, I am satisfied that, at the time of application, the couple had a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship was genuine and continuing and that the couple lived together or did not live separately and apart on a permanent basis for the purposes of s 5F(2)(b) to (d) of the Act. However, I find that these circumstances do not exist at the time of my decision.

While the social aspects of the relationship weigh in favour of the couple, the nature of the commitment does not, and I consider the applicant’s failure to engage with the sponsor over the past five weeks and her failure to participate in the second hearing is fatal to the application as it is not indicative of a mutual commitment or a genuine and continuing relationship on her part.
Accordingly, I am satisfied that the requirements of s 5F(2) were met at the time the visa application was made and that the applicant met cl 309.211(2)(a) of Schedule 2 to the Regulations at the time of application. However, I find that s 5F(2) is not met at the time of my decision and therefore, the applicant does not meet cl 309.221(1)(a) of Schedule 2 to the Regulations.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The 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 2024
Representative for the Applicant:           Mr Russell Tien
ATTACHMENT - Extract from Migration Regulations 1994
1.15ASpouse
(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).