Deen (Migration)

[2018] AATA 5921

Deen (Migration) [2018] AATA 5921 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Mussarat Nisha Deen

VISA APPLICANT:  Mr Jaffar Hussain

CASE NUMBER:  1816848

DIBP REFERENCE(S):  BCC2018/1952872

MEMBER:Adrienne Millbank

DATE:17 July 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 17 July 2018 at 5:04pm

CATCHWORDS

MIGRATION – Visitor (Class FA) – Subclass 600 (Visitor) – applicant not relative – new application for prospective partner – insufficient evidence – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 338
Migration Regulations 1994 (Cth), r 4.02

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 7 June 2018, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 8 June 2018. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Section 338 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable. A decision refusing to grant a visitor (Class FA) visa is reviewable if the visa applicant made the visa application while outside the migration zone, and the non-citizen intends to visit an Australian citizen or permanent resident who is a relative of the kind referred to, and particulars of the relative concerned are included in the application (s.338(7)). An application for review of a s.338(7) reviewable decision may only be made by the relative referred to in that subsection: s.347(2)(c). In this case, the relative must be a parent, spouse, de facto partner, child, brother or sister of the applicant (s.338(7)(b) and cl.600.221(a)).

4. On 20 June 2018 the Tribunal wrote to the review applicant inviting her to comment on the validity of the application for review, as it appeared that Section 338(7) of the Migration Act 1958 had not been met because the review applicant was not the parent, spouse, de facto partner, child, brother or sister of the visa applicant. In his application the visa applicant stated the purpose of his intended temporary stay was to visit the review applicant who is his fiancée.

5. Submissions and documents were provided to the Tribunal on the 2^nd, 4^th, and 10^th of July 2018. In her submissions the review applicant argued that she and the visa applicant should be considered as being in a de facto relationship because: the visa applicant has lodged an application for a Prospective Marriage (Subclass 300) visa, for which she is the sponsor; she and the visa applicant lived together during her visits to Pakistan from 1 – 12 November 2017 and 30 March – 22 April 2018; and she and the visa applicant intend to live together during the applicant’s visit to Australia. The review applicant submitted a copy of a Queensland Civil Partnership Certificate, dated 10 July 2018, showing she registered her relationship with the visa applicant on 6 July 2018.

6. The review applicant submitted that the parties’ application for a Prospective Partner (Subclass 300) visa was in effect an ‘undertaking to the effect’ that they are in a partner relationship. The Tribunal has considered the information provided in this application, a copy of which was provided by the review applicant to the Tribunal, against the four factors required to be considered for a de facto relationship. In the application, the applicant acknowledged that the parties have not pooled their financial resources; that they have no joint bank accounts or assets or liabilities. He advised that this was because they are in a fiancé relationship and ‘we are not married as yet’. The parties claimed, and the Tribunal accepts, that they shared expenses during the sponsor’s two trips to Pakistan when she visited the applicant, but does not find that they have pooled financial resources consistent with being in a de facto relationship.

7. The parties claim that they cohabited, in hotel rooms and a holiday unit, during the sponsor’s visits, and that the applicant showed the sponsor’s son around his hometown in Pakistan during the sponsor’s son’s end of school year 2017 visit to Pakistan. The Tribunal does not find, on the basis of these claims, that the parties established a joint household where they shared the care of children. The Tribunal accepts that close family members know them to be engaged, but the evidence does not support and the Tribunal does not find that the parties have functioned socially and are recognised and related to as a de facto couple by family members and friends.

8. The applicants claim to be in love, and that they had sex during the sponsor’s visits to Pakistan from 1 – 12 November 2017 and 30 March – 22 April 2018. They claim they met on Facebook in June 2017, before meeting in person in November 2017. At this time the review applicant had not yet obtained a divorce from her second husband.

9. The parties claim they have continued to communicate via Facebook while living in different countries. They described plans of marrying in Australia; enjoying their sex life for a year before having children; and developing a business together. The review applicant described how the visa applicant proposed to her, with an emerald engagement ring, on 14 April 2018, at the Marriott Hotel in Islamabad.

10. The parties provided supporting evidence of an engaged relationship. The Tribunal does not find it sufficient to demonstrate a level of commitment commensurate with a mutually committed, genuine and continuing de facto relationship.

11. The Tribunal has considered the review applicant’s submissions and arguments and, while making no comment regarding the merits of the applicant’s Prospective Partner (Subclass 300) visa application, is not satisfied, on the information and evidence available, that the review applicant and the visa applicant are in a de facto relationship as defined by s.5CB of the Act.

12. To establish jurisdiction according to s.338(7)(c), the particulars of the relative concerned must have been included in the visa application. The particulars included in the application stated the visa applicant intended to visit his fiancée and meet her family members. As the Tribunal finds that the parties’ relationship does not amount to de facto, then particulars of the kind of relative referred to have not been included. It follows that the Tribunal does not have jurisdiction in this matter.

    DECISION

13. The Tribunal does not have jurisdiction in this matter.

    Adrienne Millbank
    Member