Melano (Migration)

[2024] AATA 283

Melano (Migration) [2024] AATA 283 (13 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Susan Melano

REPRESENTATIVE:  Mrs Krunhye Oh (MARN: 2218004)

CASE NUMBER:  2100831

HOME AFFAIRS REFERENCE(S):          BCCC20201077192

MEMBER:Donna Petrovich

DATE:13 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 13 February 2024 at 12:31pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – existing relationship for 12 months before application made – validly married – relationship ceased and sponsorship withdrawn – no response to invitation to provide information and loss of right to hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 359(2)
Migration Regulations 1994 (Cth), rr 1.03, 1.15A(3), 2.03A, Schedule 2, cls 820.211(2)(a), 820.221

CASE
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 9 March 2020 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.

   The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2) because the delegate was not satisfied that there was an existing relationship in the period 12 months prior to the lodgement of the visa application as required by Regulation 2.03A.

   Background

3. The applicant applied for a subclass 820 Partner (Temp)(Class UK)(Subclass 820), Partner (Residence)(Class BS) (subclass 801) visa on 9 March 2020, which was refused by the Department of Immigration and Border Protection as they were not satisfied that there was sufficient evidence to determine that there was a relationship of 12 months prior to the lodgement of the application on 9 March 2020, and were not satisfied that the claimed compelling reasons exist in this case.

   ·     On 28 March 2021 the applicant emailed the Tribunal to advise that she and the sponsor had married on 27 March 2021. A registration number was provided but no marriage certificate was provided in evidence.

   ·     On 26 July 2021 the sponsor notified the Tribunal that he wished to withdraw the application for review as he and the applicant were no longer together.

   ·     On 6 August 2021, an Appointment of Authorised Representative form was received stating that the applicant had ‘suffered physical and mental harm, neglect, and abuse in the hand of Mr Montgomery during the couple’s relationship and she is now forced out of their matrimonial home with limited personal belongs and no paperwork or records of the AAT review application’. No supporting information or documentation was provided to the Tribunal.

   ·     On 11 August 2021, the Tribunal was advised by the sponsor that the relationship was continuing and that he was no longer withdrawing his sponsorship.

   ·     On 26 November 2021 the Sponsor again withdrew his sponsorship.

   ·     On 3 February 2022 the Sponsor advised that he and the applicant had reconciled on Christmas day.

   ·     On 22 of June 2023 The Tribunal was notified that the Representative was unable to contact the applicant, and the representative terminated the service agreement with Ms Susan Melano.  In correspondence from the representative, they said that they had not been able to receive instructions from Ms Melano for some time.

   ·     On 21 July 2022 the Tribunal received a notification by the sponsor that on 13 May 2022 the applicant and he had “parted ways”.

   ·     On 23 November 2023, the Tribunal invited the applicant to provide information under s 359(2) of the Act and requested a response within 14 days, by 7 December 2023.  A hearing invitation was also sent to the applicant on the same day.

   ·     On 28 November 2023 the Tribunal received an email from the applicant’s Representative advising that they had ceased representing the applicant. The Tribunal accepted this response as an implied request for an extension of time to provide information and on 9 January 2024 sent an email to the applicant and the Representative giving an extension of time to respond by close of business 23 January 2024. 

   ·     On 22 January 2024, the Tribunal received an Appointment of New Representative form with an email requesting an extension of time to provide information. The request was granted and a further extension of time was given to provide information by 9am on 6 February 2024.

   ·     No response to the s359(2) request was received prior to 9am on 6 February 2024, the day of the scheduled hearing, and subsequently the applicant lost their right to a hearing. This being the case, the Tribunal will now proceed to write a decision on the papers.

   ·     The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant and sponsor were in a relationship for 12 months prior to the application for the visa.  Further, at the time of decision whether the applicant and sponsor are in a genuine and ongoing relationship. 

6. SPOUSE/DE FACTO (cl 820.211(2)(a), (3)(e), (4)(e), (5)(e), (6)(d), cl 820.221)

   Whether the parties are in a spouse or de facto relationship

7. 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 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 spouse of the sponsor who is an Australian citizen.

8. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had 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 1.15A(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.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and sponsor have claimed to be in a relationship for the 12 month period prior to the application for Partner Visas.

10. In this case the Tribunal was not satisfied that the evidence was sufficient to determine that the applicant and sponsor were in a relationship for 12 months prior to the visa application, and the Tribunal is not satisfied based on the evidence that the relationship was genuine and ongoing.  The relationship has subsequently broken down and the sponsor has withdrawn sponsorship, the applicant and sponsor no longer live together on a permanent basis. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a), as the relationship has broken down, and the sponsor has withdrawn sponsorship the Tribunal is unable to consider the matter further.

11. The Tribunal has considered the evidence and finds that the applicant has not provided sufficient evidence to satisfy the Tribunal that the relationship is genuine and ongoing, and the Tribunal gives no weight in favour of the applicant in this case.   

    Are the other requirements for a spouse relationship met?

    The Tribunal is not satisfied that there is a mutual commitment to shared life to the exclusion of others; that the relationship is genuine and continuing, and as determined by the evidence that the applicant and sponsor do not live together but separately on a permanent basis.

12. On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made or the time of this decision.

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

    Is the applicant sponsored?

14. Clause 820.211 requires at the time of application the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

15. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221.

16. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by reg 1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and reg 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

17. Whilst the applicant may have been sponsored at the time of application, the Tribunal is not satisfied that the applicant and sponsor were in a genuine and ongoing relationship for 12 months prior to the application. The Tribunal finds that in this case the relationship has broken down, the applicant and sponsor no longer live together and the sponsor withdrew sponsorship on several occasions and confirmed on 21 July 2022 that they were no longer in a relationship and had been separated since 13 May 2022. The Tribunal accepts the evidence that the relationship has ceased, and the sponsor has withdrawn sponsorship.

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

    DECISION

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

    Donna Petrovich
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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).