Lin (Migration)

[2024] AATA 3701

Lin  (Migration) [2024] AATA 3701 (29 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chia Cheng Lin

CASE NUMBER:  2110655

HOME AFFAIRS REFERENCE(S):          BCC2019/4552930

MEMBER:Tegen Downes

DATE:29 September 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 29 September 2024 at 10:58am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – minimal information about financial, household and social aspects of relationship and nature of relationship provided in application – no response to invitation to provide further information – proposed wedding date now passed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65, 359(2), 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211(2), 820.221

CASES
Ally v MIAC [2008] FCAFC 49
Hasran v MIAC [2010] FCAFC 40
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

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 section 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 11 September 2019 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 (Cth) (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the ‘spouse’ of the sponsor, within the meaning of the Act.

4. On 13 September 2024, I issued an invitation to the applicant pursuant to s 359(2) of the Act to provide ‘Further information to support your claims that you and your partner are in a spouse or de facto relationship’.

5. The invitation stated that the information should be provided by 27 September 2024 but that if the information could not be provided by this date, the applicant may request an extension of time. The invitation also stated that in the event that no response was received within the period allowed, the Tribunal may make a decision on the review without taking any further action to obtain the information and the applicant would lose any entitlement he/she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant did not respond to the invitation within the prescribed period and no extension has been requested. In these circumstances, s 359C of the Act applies and, pursuant to
   s 360(3), the applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

7. I have decided to proceed with making a decision without taking further steps to obtain information from the applicant. I consider that this is reasonable in circumstances where the applicant has been given multiple opportunities to provide information in support of the visa and review applications but has failed to do so. In particular, in addition to the s359(2) letter, I note that:

   a.The applicant submitted no evidence to the department in support of the visa application.

   b.The applicant was sent a letter by the Tribunal on 18 August 2021. The letter stated, among other things, that ‘If you wish to material or written arguments for us to consider, you should do so as soon as possible’. No response was received.

   c.The applicant was sent a letter by the Tribunal on 13 May 2024 requesting various information in support of the application. No response was received.

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

   ISSUE AND LAW

9. This review application relates to an application for a provisional partner visa to enable the applicant to remain in Australia on a temporary basis.

10. The issues are whether, at the time the visa application was made, and at the time of this decision, the applicant is the de facto partner of an Australian citizen, for the purposes of

    
    

    cl 820.211(2)(a) and cl 820.221 of Schedule 2 to the Regulations.

11. ‘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).

12. 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.

13. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined: Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

14. The applicant is a 35-year-old man from Taiwan. He claims to be in a relationship with the sponsor, a 48-year-old Australian citizen by birth.

15. In the application form, the applicant claims to have first met the sponsor on 16 May 2018 and to have begun a committed de facto relationship with the sponsor on 9 September 2018.

16. No evidence was submitted to the department in support of the application. The only evidence that has been submitted to the Tribunal is a letter from a civil celebrant regarding a proposed wedding ceremony between the applicant and the sponsor on 8 December 2021, and a notice of intended marriage form.

    Financial aspects of the relationship

17. In the application form, the applicant claims:

    so far no share money waiting until we move in together

18. In view of this admission, and in the absence of any credible evidence to the contrary, I find that, at the material times, the applicant and the sponsor do not have any joint assets or joint liabilities, do not pool their financial resources, do not owe legal obligations to the other party and do not share day-to-day financial resources. The financial aspects of the relationship are not indicative of a de facto relationship.

    Nature of the household

19. The application form states:

    Has the applicant lived separately and apart from the sponsor for any periods of time since committing to a shared life together to the exclusion of all others?

    Yes

    Give details: both have own lease agreements and are waiting for them to
    expire before moving in full time

    Give details of the nature of the household.

    visit daily sleep over,

20. In view of this admission, and in the absence of any credible evidence to the contrary, I find that, at the material times, the applicant and the sponsor do not live together, do not share housework in a manner consistent with a genuine relationship and do not share responsibility for the care and support of any children. The nature of the household is not indicative of a de facto relationship.

    Social aspects of the relationship

21. The application form states:

    share many friends, still go on dates, met parents, went on a road trip together

22. No evidence has been submitted to support this claim. Accordingly, in the absence of any credible evidence, I find that the applicant and the sponsor do not represent themselves to other people as being in a de facto relationship, that their family, friends and acquaintances do not believe the relationship between the applicant and the sponsor to be genuine and continuing and that the applicant and the sponsor do not plan and undertake joint social activities. The social aspects of the relationship are not consistent with a de facto  relationship.

    Nature of persons’ commitment to each other

23. The application form states:

    would like to get married when we are allowed and start living together, possibly open a small business together

24. There is no evidence before the Tribunal as to how the couple met, how their claimed relationship developed, how the couple support each other and their future plans. The only evidence before the Tribunal is the letter from their celebrant and the notice of intended marriage. However, there is no evidence that the couple did, in fact, marry as planned.

25. In the absence of credible evidence, I find that, at the material times, the applicant and the sponsor were not in a relationship, do not live together, do not draw companionship and emotional support from each other and do not see the relationship as long-term. The nature of the commitment is not indicative of a de facto relationship.

    Conclusion

26. Having regard to the findings set out above, I am not satisfied that, at the material times, the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others, that the relationship is genuine and continuing and that the couple live together or do not live separately and apart on a permanent basis for the purposes of s 5CB(2)(a) to (c) of the Act. In the absence of any evidence, I am also not satisfied that the applicant and the sponsor are not related by family for the purposes of s 5CB(2)(d) of the Act.

27. On this basis, the Tribunal is not satisfied that the requirements of s 5CB(2) are met at the time the visa application was made and at the time of this decision.

28. Therefore the applicant does not meet cl 820.211(2) and cl 820.221 of Schedule 2 to the Regulations.

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

    DECISION

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

    Tegen Downes
    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).