Mason (Migration)

[2022] AATA 4252

Mason (Migration) [2022] AATA 4252 (5 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Roma-Jay Mason

CASE NUMBER:  2006043

HOME AFFAIRS REFERENCE(S):          BCC2018/3188799

MEMBER:Ann Duffield

DATE:5 October 2022

PLACE OF DECISION:  Canberra

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

Statement made on 05 October 2022 at 11:27am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – no sponsorship application form from Mr Fry – Tribunal is not satisfied that the parties live together– applicant is not the spouse or de facto partner of the sponsor as defined at the time of this decision – decision under review affirmed   

LEGISLATION
Migration Act 1958, ss 5CB, 65
Migration Regulations 1994, r 2.03, Schedule 2, cl 820.211

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 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 23 August 2018 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)(a) because they were not satisfied that the applicant was the spouse of a person who is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen.

4. The applicant was invited to a hearing on 4 October 2022. On 15 September 2022 she wrote to the Tribunal to seek a postponement as she had to take her son to a doctor’s appointment. The Tribunal agreed and sent another invitation to the applicant on 19 September 2022 for rescheduled hearing on 5 October 2022 at 10:30am.

5. At the time and date of the rescheduled hearing the applicant contacted the Tribunal informing it that she would not be attending a hearing and asked it to make a decision based on the information before it.

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

   background

7. The applicant provided the Tribunal with a copy of the delegate’s decision along with the application for review.

8. The applicant is a citizen of the United Kingdom born on 21 August 1996. She claims to have entered into a de facto relationship with Mr Fry, an Australian citizen on 11 June 2017 after having met him for the first time whilst he was visiting the United Kingdom on 21 May 2016.

9. The applicant travelled to Australia in 2017 and the couple began living together. She has remained in Australia since that time and is currently on a Bridging Visa in relation to this application.

   Consideration of claims and evidence

10. The issue in the present case is whether the applicant is the spouse of a person who is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen.

    Whether the parties are in a spouse or de facto relationship

11. Clause 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 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 Mr Zachary Douglas Fry, an Australian citizen.

12. The Tribunal notes that Mr Fry has not lodged a sponsorship application.

    Are the parties in a de facto relationship?

13. '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).

14. 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.

    Before the department

15. The department wrote to the applicant in January 2020 requesting information to support her claims for being in a de facto relationship with Mr Fry and requested that Mr Fry lodge a sponsorship application. The applicant was informed at that time that if she did not provide any further details then a decision would be made without the department taking any further action to obtain the requested information.

16. The applicant did not provide the department with any further evidence to demonstrate that she was in an ongoing de facto relationship with Mr Fry and nor was a sponsorship application from Mr Fry received by the department. The department made its decision based upon the original application.

    Before the Tribunal

17. The Tribunal wrote to the applicant and invited her to a hearing informing her that it was unable to make a favourable decision on the basis of the information before it. The Tribunal invited her to provide all documents she intended to rely on to support her case by 28 September 2022. The Tribunal directed the applicant to the Department’s decision inviting her to have regard to the reasons for the refusal and to provide it with details of any changes in her circumstances in providing documents and preparing for the hearing.

18. The applicant was also informed that if she did not appear, then the Tribunal may make a decision on the review without taking any further action to allow or enable her to appear before it. She informed the Tribunal on the morning of the scheduled hearing, declining the invitation to appear and asked that a decision to be made by the Tribunal on the basis of information before it.

19. The applicant did not provide any additional information to support her application prior to this decision being made.

20. The Tribunal has considered the 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.

21. The applicant stated that she and Mr Fry had a joint savings account but did not provide any evidence to support that claim. There is no evidence before the Tribunal to satisfy it that the financial aspects of the relationship can support a finding that the parties are in a genuine, continuing and ongoing spousal relationship or that they live together.

22. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

23. The applicant stated that she and Mr Fry lived together in London and shared a house in Australia with Mr Fry’s sister. However, neither at the time of application nor at the time of decision has the applicant provided corroborating evidence that the applicant and Mr Fry have been or continue to be living together as de facto partners in a joint household. There is no evidence before the Tribunal to satisfy it that the parties are in a genuine, continuing and ongoing spousal relationship or that they live together.

24. The Tribunal has considered the 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.

25. The applicant has stated that she and Mr Fry have met each other’s families and are considered by their friends and family as being in a de facto relationship. However, apart from this statement in her application, as recorded in the delegate’s decision, the applicant has provided no further evidence, either at the time of application or the time of decision that the social aspects of their relationship support a claim that they have a genuine and ongoing spousal relationship or that they live together as de facto spouses.

26. The Tribunal has considered the 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.

27. The applicant has stated that she and Mr Fry met in May 2016 and began a de facto relationship in June 2017. She states that they are fully committed to each other, and they support and understand each other’s long term goals. However, neither at the time of application nor the time of the decision has the applicant provided additional evidence to support this claim.

28. Furthermore, despite requests from the department, there is still no sponsorship application form from Mr Fry. Considering these matters as a whole, the Tribunal is not satisfied that the applicant and Mr Fry were or are in a genuine, long term spousal relationship to the exclusion of all others. The Tribunal is not satisfied that the parties live together.

29. 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 or at the time of this decision.

30. Therefore the applicant does not meet cl 820.211(2)(a) or cl 820.221.

31. There is no evidence before the Tribunal that the applicant meets any of the other relevant criteria. There is no evidence that Mr Fry is deceased or that there are any family violence claims or that there are joint custody, or residence or contact orders, made in relation to any joint children.

    CONCLUSION

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

    decision

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

    Ann Duffield
    Senior 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).