Law (Migration)

[2019] AATA 3497

Law (Migration) [2019] AATA 3497 (14 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Wan Chooi Law

CASE NUMBER:  1702430

DIBP REFERENCE(S):  CLF2013/185451

MEMBER:Carmel Morfuni

DATE:14 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 14 March 2019 at 11:31am

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing defacto relationship – limited evidence of household and relationship – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 801.221; r 1.09

CASES

He v MIBP [2017] FCAFC 206

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 Immigration on 31 January 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 August 2013 on the basis of her relationship with her sponsor. 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.

3. The delegate refused to grant the visa on 31 January 2017 on the basis that the applicant did not satisfy cl.801.221 because the delegate was not satisfied that the parties were in a genuine and continuing defacto relationship.as required under Section 5CB of the Act.

4. The application for review and a copy of the delegate’s decision were lodged with the Tribunal on 13 February 2017.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether or not the parties were in a defacto relationship as defined in the Act at the date of decision.

   Whether the parties are in a spouse or de facto relationship

7. 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 claims to be the de facto partner of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

8. The applicant was granted a subclass 820 visa on 8 December 2014.

9. On 25 February 2019, the Tribunal forwarded a letter to the applicant pursuant to Section 359A of the Act indicating that the department had received adverse information (referred to in its decision) alleging that the applicant had a contrived relationship with her sponsor and inviting her to comment on the information which was detailed as follows in the Tribunal’s letter:

   ·your relationship with your sponsor is contrived

   ·that at that time you had not been in a relationship with him for about two or three months

   ·that your sponsor is continuing with the application because he feels sorry for you

   ·that there are no personal possessions of yours in your sponsor’s house to demonstrate that you are still in a relationship

   ·that if your sponsor was questioned by the Department, you would both maintain that the relationship is genuine

   ·that your sponsor would feel guilty if you both withdrew the application

   The letter continued:

   This information is relevant to the review because to meet the definition of ‘spouse’ under s.5CB of the Act, if you are not in a married relationship, you must be in a “de facto relationship’. In this case, you claim to be in a de facto relationship.  The four mandatory requirements for a ‘de facto relationship’, for the purposes of the Act,are that:

   ·that you have a mutual that you have a mutual commitment that you have a mutual commitment to a shared life to the exclusion of all others(s5CB(2)(a))  

   ·the that the relationship is genuine and continuing (s5CB(2)(b))

   ·that you lived together (s5CB(2)(c)(i or do not live separately and apart on a permanent basis (s5CB(2)(c)(ii)) and

   ·you are not related by family

   You are invited to give comments on or respond to the above information in writing. If you cannot provide your written comments or response by 12 March 2019, you may ask us for an extension of time in which to provide the comments or response.  If you make such a request, it must be received by us before 12 March 2019 and you must state the reason why the extension of time is required.

   We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information.You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments…

   The case officer who signed the letter also provided his contact details.

10. As at the 12 March 2019 no response to the letter or request for further time had been received.

11. The Tribunal is satisfied that the review applicant was properly sent an invitation to provide further information under section 359A of the Act. The Tribunal did not receive any response to that written invitation that is, the review applicant has not provided the Tribunal with any further information than that which was provided to the Department

12. As The Tribunal finds that the review applicant did not provide further information as requested, in these circumstances the review applicant is not entitled to appear before the Tribunal and the effect of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal may proceed to review the matter without a hearing.

13. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the act and regulations have been met. Although the concept of onus proof is not appropriate to administrative decision making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as necessary to enable the decision-maker to establish the relevant facts

14. In these circumstances, the Tribunal has proceeded to make a decision having regard to all of the evidence and the information before it including the information previously provided by the applicant to the Department.

    Are the parties in a de facto relationship?

15. De facto partner' is defined in s.5CB of the Act, which provides that 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).

16. A site visit was conducted at the applicant’s then home address on 13 September 2016. The description provided of this site visit in the delegate’s decision indicates that the applicant was contacted by telephone and indicated that she was having dinner with a friend and it would take two hours for her to come home. That did not occur and she provided various excuses subsequently when departmental officers contacted her again through an interpreter providing different times when she would be home, not coming home, and thereafter not answering the telephone. She then provided a text message the following day to explain why she did not return home the previous evening and on 14 October 2016 and natural justice letter was sent to her through her representative in relation to these issues. Responses to the invitation to comment was received on 4 November 2016 and on 10 November 2016 providing various excuses for not returning home on the relevant evening (summarised on page 2 of the delegate’s decision), which in the Tribunal’s view, seem implausible and not credible.

17. In forming an opinion whether the parties 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. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

18. Considerations under r.1.09A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.09A(2)

    (a)  Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

    There is little evidence of what the parties do, their income or liabilities, pooling of resources, joint ownership of assets, any legal obligations which they owe to the other party or any sharing of day-to-day household expenses other than those set out below:

    The evidence claimed, indicates that the applicant is paid in cash and that the sponsor contributes to half of the rent and bills including food and that in relation to any other expenses sometimes each of the parties pays. The parties have a joint bank account with Westpac and the applicant has a separate bank account. The applicant claims that the parties purchased various household items for their residence.

    The department requested evidence of the relationship since the subclass 820 Visa was granted on the 8 December 2014 and at the time of writing the decision, the delegate indicates that the only evidence provided for the financial aspects of the relationship was a joint of bank account which was opened on 29 August 2015.

    There is no evidence produced to the Tribunal, of shared finances prior to the opening of that account nor that they both contribute to the account.

    The Tribunal places little probative value or weight on this evidence.

    (b) Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework

    The parties do not have children and claim by statutory declaration that they equally share the housework. They claim to have lived together since January 2014, producing an undated letter from their then landlord stating that they had been renting a bedroom in his apartment. They have produced a joint tenancy agreement for the Rose Lane Melbourne property from 22 October 2016 to 21 October 2017, various joint utility bills at that address and further receipts for purchase of household items. At the date of the delegate’s decision they had not advised the department of their change of address. The applicant stated that the parties have a two bedroom flat which contradicts the landlord’s undated written statement provided, that they rent a bedroom in his residence. In addition, in a statutory declaration by the sponsor dated 4 November 2016 the sponsor states that the parties had not been living together for approximately two months which began in 2015 and they had been fighting for about three weeks. On the basis of the whole of the evidence provided, the Tribunal is not satisfied that the parties genuinely lived together for the periods which they claimed. There is in the Tribunal’s view, little evidence to demonstrate the parties living arrangements or household arrangements prior to them moving into their current address. The parties moved address shortly after the department’s site visit and there is little evidence of their household arrangements prior to that time.

    The Tribunal places little weight on this evidence.

    (c) Social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

19. The parties produced some photographs and written documents in support of their relationship. The applicant indicates in her statutory declaration dated 24 September 2015 that the parties socialise together, go to sporting events, go for dinner visit friends and go for day trips, have been to weddings and parties and had a three day holiday.

    In support of the relationship the parties have provided several statutory declarations from a friend, a work colleague, the sponsor’s sister and the sponsor’s employer, greeting cards from the parties to each other and messages which the parties have exchanged and photographs.

    The Tribunal found the evidence produced unconvincing and lacking in detail that the deponents of the declarations had knowledge of both parties’ relationship.

    The Tribunal places little probative value or weight on this evidence.

    (c)  Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

    The applicant indicated in her statutory declaration of 24 September 2015 that she has known the sponsor for four years and six months and that they plan to get married and have a family together in one or two years. There is no evidence in support other than these claimed statements.

    The Tribunal places little probative value or weight on this evidence.

20. The Tribunal has concluded on the basis of the whole of the evidence produced, and finds in relation to s5CB(2)(a)-(c) that the parties have not produced sufficiently probative or credible evidence to substantiate their claims and do not have a mutual commitment to a shared life to the exclusion of all others or that the relationship is genuine and continuing. The Tribunal finds that the couple are not related by family: s.5CB(2).

21. On the basis of the above the Tribunal concludes and is not satisfied that the requirements of s.5CB(2) are met at the time of this decision. Therefore, the applicant does not meet the requirements of cl.801.221(2)(c). Will all all

22. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221(2A), (3), (4), (5) or (6).

23. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

24. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Carmel Morfuni
    Member

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A  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).