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

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).
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).
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.
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’.
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.
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…

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.

Continue reading Lin (Migration)

Details

AGLC: Lin (Migration) [2024] AATA 3701
Case: [2024] AATA 3701
Decision Date: 29 September 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) considered an application by Mr Lin for a Partner (Temporary) (Class UK) visa. Mr Lin, an applicant from Taiwan, claimed to be in a de facto relationship with an Australian citizen. The dispute centred on whether the evidence provided sufficiently demonstrated a genuine and continuing de facto relationship as required for the visa.

The Tribunal was required to determine whether Mr Lin and his sponsor were in a de facto relationship at the time of the visa application, considering the financial, household, social aspects, and the nature of their commitment to each other. This involved assessing the limited information provided in the application and any subsequent responses, or lack thereof, to requests for further information.

The Tribunal found that the information provided did not support a de facto relationship. Regarding financial aspects, the applicant stated no shared finances, indicating no joint assets, liabilities, or pooling of resources. In terms of household arrangements, the applicant and sponsor maintained separate leases and did not live together, nor did they share housework or responsibilities for children. Socially, while the applicant claimed shared friends, dates, and family introductions, no evidence was submitted to substantiate these claims. The Tribunal noted that evidence of events after the application date could be relevant if it logically demonstrated facts existing at the time of application, but in this instance, the proposed wedding date had passed without the ceremony occurring. Applying the criteria under Regulation 1.09A of the Migration Regulations 1994, which mandates consideration of financial, household, and social aspects, as well as the nature of commitment, the Tribunal concluded that the evidence did not establish a genuine and continuing de facto relationship.

Consequently, the Tribunal affirmed the decision not to grant Mr Lin the Partner (Temporary) (Class UK) visa.

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 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 EVIDENCEBackground 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. 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. 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 In the application form, the applicant claims:so far no share money waiting until we move in together 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 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?YesGive details: both have own lease agreements and are waiting for them toexpire before moving in full timeGive details of the nature of the household.visit daily sleep over, 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 The application form states:share many friends, still go on dates, met parents, went on a road trip together 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

Decision

Reasons for decision

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 applicant a Partner (Temporary) (Class UK) visa.Tegen DownesMemberATTACHMENT - Extract from Migration Regulations 19941.09A 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).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Tegen DownesMemberATTACHMENT - Extract from Migration Regulations 19941.09A 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).