Maneewan (Migration)

[2023] AATA 3345

Maneewan (Migration) [2023] AATA 3345 (22 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Natthawara Maneewan

REPRESENTATIVE:  Mr Christopher David Parish (MARN: 9791199)

CASE NUMBER:  2109463

HOME AFFAIRS REFERENCE(S):          BCC2019/3577805

MEMBER:Peter Emmerton

DATE:22 August 2023

PLACE OF DECISION:  Adelaide

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

Statement made on 22 August 2023 at 2:30pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 ––no evidence provided to indicate that the financial aspects were satisfied at the time of the application – insufficient evidence has been presented – not satisfied that the couple were in a de facto relationship for at least 12 months prior to the visa application – decision under review affirmed       

LEGISLATION
Migration Act 1958, ss 5CB, 65, 359, 376
Migration Regulations 1994, r 1.09, Schedule 2, cls 820.211, 820.221

CASES
Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 18 July 2019 on the basis of her relationship with her 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 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 the basis that the visa applicant did not satisfy cl 820.211(2)(c) because despite several written requests the Department had not received evidence that the applicant is sponsored by their partner to migrate to Australia.

4. The applicant appeared before the Tribunal on 22 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jason Leslie Larcombe, the sponsor.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the couple are in a genuine spousal relationship as defined by 5F of the Act.

8. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their circumstances.

9. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.

   Whether the parties are in a spouse or de facto relationship

10. Clause 820.211(2)(c) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or 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 partner of the sponsor who is an Australian citizen.

    Are the parties in a de facto relationship?

11. 'De facto partner' is defined in 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 whether they 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 reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

13. The Tribunal notes that after assessing the visa application dated 18 July 2019, the Department did on 3 separate occasions request in writing further information so as to facilitate the processing of the visa application. This on each occasion included the Sponsorship for a partner to migrate to Australia online form as evidence that they were sponsored by their partner to migrate to Australia. Those requests were made on 12 January 2021, 19 February 2021 and 19 May 2021. In each case the applicant was given 28 days to respond and in each case no response was received. At the time of the delegate’s decision on 6 July 2021 no response had been received.

14. The Tribunal enquired at the hearing why this had been the case. The visa applicant said the sponsor took care of the application and she didn’t fully understand what was needed. The sponsor acknowledged that he had not accessed the email address he provided to the Department and had not provided alternative communication addresses to the Department. He acknowledged that it was his responsibility to do so.

15. Despite the persistent requests over more 6 months prior to the delegate’s decision, the Department had not received evidence that the applicant was sponsored by their partner to move to Australia. The delegate subsequently concluded, ….. ‘I am not satisfied that at the time of application, the applicant is sponsored by their claimed de facto partner as relevant to clause 820.211(2)(c) of the Migration Regulations. Therefore, the applicant does not meet clause 820.211(2)(c).’ …..

16. The Tribunal has considered the following in relation to reg 1.09A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.09A(2) at the time of the visa application.

    Financial aspects of the relationship

17. 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.

18. No information was provided at the time of application in relation to any of the factors stated above. Nor has any evidence been subsequently provided to the Tribunal to indicate that the financial aspects were satisfied at the time of the application. The sponsor indicated that there might have been a joint bank account but was unsure. No evidence had been presented to demonstrate its existence.

    Nature of the household

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

20. No information was provided at the time of application in relation to any of the factors stated above. Nor has any evidence been subsequently provided to the Tribunal to indicate that the nature of the household criteria were satisfied at the time of the application.

    Social aspects of the relationship

21. 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.

22. The only information submitted at the time of application that the visa applicant was in a genuine relationship with the sponsor was a series of unannotated black and white photographs, some of which show the couple together or with possible mutual friends or family. No additional evidence has been subsequently provided to the Tribunal to indicate that the social aspects were satisfied at the time of the application. The visa applicant stated during the hearing that they didn’t know they needed to be annotated.

    Nature of persons’ commitment to each other

23. 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.

24. No information was provided at the time of application in relation to any of the factors stated above. No additional evidence has been subsequently provided to the Tribunal to indicate that the nature of person’s commitment aspects had been satisfied at the time of the application. The Tribunal has obtained the Department travel records of the sponsor which indicate he spent 8 days away from Australia, arriving in Thailand in April 2018 and 21 days away from Australia in September 2018, once again arriving in Thailand. Whilst this indicates arrival and departure points of the sponsor, it provides no evidence of subsequent movements, his activities, nor possible time spent with his claimed partner.

25. It was acknowledged that the first trip was an opportunity for the couple to get to know each other as they had only previously met online. The Tribunal does not accept that a first in person meeting indicates that the de facto relationship had commenced. 

26. Both parties acknowledged the sponsor had stayed in hotels on both trips in 2018. They stated the sponsor had not met any members of the visa applicant’s family or friends on these trips and in fact the sponsor had talked to members of the applicant’s family including her mother, who is unwell. The sponsor has only communicated with her online. It is clearly evident that there is no substantiated evidence of a joint household being set up during these 2 short visitations.

27. In addition, if it is accepted that the de facto relationship commenced upon the arrival of the visa applicant in Australia, the Tribunal notes that this falls short of the at least 12-month period ending immediately before the date of the application requirement in reg 2.03A(3), even if it was accepted as a possible indicator of the couple’s commitment. The Visa Application date was 18 July 2019.

28. The Tribunal acknowledges the couple appear to be genuinely committed to each other at this current point in time. Their demeanour and caring for each other was clearly demonstrated during the hearing. This was further reinforced by the evidence of their relationship currently which was provided prior to the hearing. Unfortunately, they sought advice from their migration agent only after applying for the visa. The Tribunal accepts this made it more challenging to gather and present evidence of their de facto relationship existing for at least 12 months prior to application. This was exacerbated by their failure to provide the evidence clearly detailed by the Department as requested in the repeated communications initiated by the Department. The Tribunal acknowledges that this is a complex area for inexperienced people to navigate. In most cases they have no prior experience and usually need to rely upon specialist advice to ensure they meet the stipulated legislated requirements.

29. There is no evidence before the Tribunal to indicate that the parties are related by family.

30. Both members of the couple were at the time of application in excess of 18 years, as indicated by passport documentation.

31. There are no other circumstances of the relationship which have been presented which the Tribunal believes are relevant for consideration in relation to the at time of application proof of the de facto relationship for at least the 12 months prior to the application.

32. The Tribunal has determined that insufficient evidence has been presented to demonstrate that at the time of application, the couple had a mutual commitment to a shared life to the exclusion of all others, that the relationship between them is genuine and continuing and that they live together or do not live separately and apart on a permanent basis. 

33. The Tribunal is not satisfied that there is sufficient evidence before them to indicate the couple were in a de facto relationship for at least 12 months prior to the visa application.

34. On the basis of the above the Tribunal is not satisfied that the requirements of s 5CB(2) are met at the time the visa application was made.

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

    DECISION

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

    Peter Emmerton
    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).