LIU (Migration)

[2020] AATA 2507

LIU (Migration) [2020] AATA 2507 (15 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zhewei Liu

CASE NUMBER:  1727681

DIBP REFERENCE(S):  BCC2016/1964109

MEMBER:Nicholas McGowan

DATE:April 15, 2020

PLACE OF DECISION:  Melbourne

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

Statement made 15 April 2020 at 8:45am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – 12-month requirement – hearing invitation – non-appearance before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 362B, 365, 366
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 820.211, 820.221

REVIEW

1. On 9 November 2017 the applicant applied to this Tribunal for a review of his temporary partner visa refusal.

2. The Minister’s delegate refused to grant the applicant the temporary partner visa as the delegate found the applicant had not been in a de factor relationship with his sponsor for at least 12months prior to the date he applied for the visa.

3. In other words, when the applicant applied to the Minister for the visa on 6 June 2016, the applicant is required to have been in a de facto relationship (as defined under the Act and Regulations) with his sponsor for at least 12 month prior. Put simply, the applicant must have been in a ‘de facto’ relationship with his sponsor since at least 6 June 2015.

4. ‘De facto’ is defined in Section 5CB of the Act: 5CB(2). Relevantly, Regulation 1.09A makes provision for the considerations relevant to such consideration.

5. In addition, Regulation 2.03A prescribes two further criteria which must be met, namely subregulation 2.03(A)(2), and 2.03A(3).

6. Subregulation 2.03A(2) requires for a minimum age requirement for both the sponsor and applicant. Simply put, the applicant AND sponsor must each be at least 18 years of age at the time they applied for the visa.

7. In this case, the applicant has provided a copy of his passport which indicates (and satisfied this Tribunal) he was born on 6 Jan 1987 (at folio 235 of the Department’s file).

8. It follows that at the time of application (6 June 2016), the applicant was aged 29 years.

9. The evidence of sponsor’s age at the time of application can be found variously throughout the Department’s file, including at folio 188 (Notarial Certificate).

10. As the sponsor’s declared date of birth is 17 April 1989 (and this is recognised by this Tribunal on face value), it follows that at the time of application her age was 27 years.

11. Given the above, logically, both the applicant and his sponsor met the age requirement (at the time of application) as specified under subregulation 2.03A(2). Hence, the applicant meets subregulation 2.03A(2).

12. Subregulation 2.03A(3) states that if the applicant cannot establish compelling and compassionate circumstances for the grant of the visa, the Minister must be satisfied that the applicant has been in the claimed ‘de facto’ relationship for at least the period of 12 months ending immediately before the date of the visa application. In plain speak, the applicant and sponsor must have been in a ‘de facto’ relationship ( as defined under the Act and regulations) 12 months before the date they applied for the visa – and if they were not, they may still meet the criteria for the grant of the visa if the applicant can establish compelling and compassionate circumstances. Subregulation 2.03A(3) will not apply in cases where the ‘de facto’ relationship is a relationship which is recognised under a law of a State or Territory prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008 as a kind of relationship prescribed in those Regulations. As no ‘relationship’ has been registered as prescribed above, the Tribunal must turn its mind to whether the parties were in a ‘de facto’ relationship (as defined in the Act and regulations) 12 months prior to the time of application.

13. This Tribunal has considered the evidence in the applicant’s Department file (including all evidence in this Tribunal’s own case file). Relevantly, in the Application for the visa the applicant declares on Page 2 (folio 266 reverse) that his relationship with his sponsor is ‘de facto’ and began on 14 February 2015. The applicant’s sponsor declares the same, at Page 7. On page 12 of that same Application (folio 261 front and reverse) the applicant declares he first met his sponsor on 20 July 2014,  declared they committed to a ‘de facto’ relationship on 14 February 2015, and declared he and his sponsor committed to a shared life together to the exclusion of all others on 3 March 2015. The application was also accompanied by a number of statements, including from both the applicant and sponsor, which spoke to the nature of their claimed relationship.

14. While the evidence submitted (in-part referred to above) speaks to a relationship of some kind, most notably a ‘girlfriend’ like relationship – as described by the applicant himself in his statement at folio 42, it is apparent to this Tribunal further enquiry is required in order for the applicant to satisfy this Tribunal the relationship was in fact ‘de facto’. To this end, on 20 February 2020 this Tribunal wrote to the applicant and advised the Tribunal was unable to make a favourable decision on the evidence in his file alone. Accordingly, the Tribunal invited the applicant to appear before a public hearing scheduled for 6 April 2020.

15. On 26 March this Tribunal again wrote to the applicant (folio 25-31) and gave the applicant the choice to have the scheduled ‘face-to-face’ hearing deferred (because of COVID-19), or proceeded with the hearing as scheduled (via telephone).

16. No written response was received from the applicant to either letter sent by this Tribunal (on 20 February 2020 or 26 March 2020).

17. On Friday 27 March 2020 this Tribunal’s Registry contacted the applicant on his mobile phone to seek clarity over whether the applicant would attend the scheduled hearing (6 April 2020) or alternately choose to postpone until such time a face-to-face hearing could proceed. The Registry officer spoke to the applicant. The applicant stated he had not read the communication from the Tribunal (the invitation of 26 March was transmitted to the last email address provided to the Tribunal by the recipient in connection with the review (as per s 379A(5)). The applicant advised the registry officer he agreed to the hearing via telephone. The registry officer brought the applicant’s attention to the accompanying documentation sent to him, and indicated he should compete it and return it to this Tribunal. At the date of this decision (some twelve (12) business days later) there has been no contact from the applicant whatsoever.

18. On the day of the scheduled hearing (6 April 2020), another Registry officer attempted to make contact with the applicant via his mobile telephone. This contact was in addition to two electronic telephone messages sent directly to the applicant’s registered mobile telephone number reminding him of the public hearing as scheduled (the first message was sent to the applicant on 30 March 2020, and the second on 3 April 2020). The Registry officer on the day of the hearing made three separate attempts to contact the applicant, the first at 12:09pm (which rang-out), the second at 12:22pm which was answered by a voice message on the mobile number provided by the visa applicant (the officer left a message advising the visa applicant to contact the Tribunal), and the third at 12:31pm which also rang-out (without being answered).

19. The Tribunal Registry has not received a formal response to its hearing invitation of 20 February 2020, its subsequent invitation to postpone or proceed on 26 March 2020, or its telephone calls since (other than confirmation by the applicant over the telephone on 27 March 2020 that he wished to have the hearing proceed (albeit by telephone).

20. The Tribunal exercised its discretion to hold the hearing by telephone. The conduct of the hearing in this way is permitted under section 366 of the Migration Act 1958. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the visa applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

21. The applicant did not appear before the Tribunal on the scheduled hearing date of 6 April 2020 (either in person or on the mobile telephone) despite being contacted by this Tribunal on numerous occasions, and including the visa applicant himself agreeing to a hearing via telephone.

22. At the time of this decision the Tribunal has received no other communication from the applicant in regards to the scheduled public hearing.

23. The Tribunal has carefully considered whether to adjourn the review and invite the applicant to another hearing. However, taking into account that the applicant has provided no reasons why he couldn’t attend the scheduled hearing, nor has he requested additional time in order to prepare for an alternate hearing date, and given this Tribunal has made no fewer than five attempts to facilitate the hearing and conduct the review (not including the two electronic text message reminders sent to the applicant’s mobile telephone) in these circumstances, and under s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to allow or enable the applicant to appear before it.

    Relevant Law

24. Relevantly to this case, clauses 820.211 (2)(a) and 820.221 require that 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 or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the de facto of his sponsor.

    Are the other requirements for a de facto relationship met?

25. There is some evidence on the Department's file concerning the relationship between the applicant and the sponsor (as discussed above).

26. The Tribunal is prepared to accept that the applicant and sponsor were in a relationship of some kind. The Tribunal also notes various people have attested to the existence of a relationship. Based on the information before it however, the Tribunal has insufficient evidence as to the financial aspects, nature of the household, social aspects and the nature of the commitment to find that the applicant and the sponsor were in a de facto relationship  (as required for the grant of the visa) at the time of this decision. As noted above, the applicant was invited to a hearing to be able to give evidence and present arguments but he did not attend. Further, there is no evidence before the Tribunal as to the current state of the relationship. There is no evidence before this Tribunal concerning whether the parties have any current financial arrangements.  There is no evidence before this Tribunal concerning the current nature of any household.  There is no evidence before the Tribunal concerning any current social aspects of the relationship.  There is no evidence before the Tribunal concerning any current nature of commitment between the applicant and his sponsor to the relationship. Specifically, other than the applicant’s application to this Tribunal for a review of the Minister’s delegate’s refusal decision (lodged with this Tribunal on 9 November 2017) the applicant has not (since 13 November 2017 (folio 17) provided any evidence whatsoever in regards to any of the requirements under Section 5CB, or in respect to any of the considerations under Regulation 1.09A: (each matter in the subparagraphs (Roman numerals) of r.1.09A(3)).

27. Given the above, the Tribunal is not satisfied that at the time of this decision the parties remain in a ‘de facto’ relationship - even affording the applicant the benefit of any doubt in regards to whether he met the ‘de facto’ requirements at the time of application. This is because there is no evidence whatsoever, since 13 November 2017 that the applicant and his sponsor remain in a de facto relationship as required for the grant of the visa. Further there is no evidence or claim that the applicant can or does meet any of the alternative criteria available to him when a ‘de facto’ relationship has ceased and may be considered under the legislative exceptions.

28. For the reasons given, the applicant does not satisfy cl.820.221 (time of decision criteria). It follows that this Tribunal finds the applicant does not satisfy the criteria for the grant of the visa.

    Conduct of the review

29. Section 365 of the Migration Act 1958 states that any oral evidence that the Tribunal takes while a person is appearing before it must be taken in public. While oral evidence was invited in this case, the visa applicant did not appear before this Tribunal at the scheduled hearing. Regardless, had the visa applicant provided oral evidence, this Tribunal would have relied upon section 365(2) of the Act to take any (and all) oral evidence in private because this Tribunal is satisfied the public interest is served by this approach because it protects the public and Tribunal registry staff form any public health risk posed during the present COVID pandemic.

    DECISION

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

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