Nguyen (Migration)

[2020] AATA 2888

Nguyen (Migration) [2020] AATA 2888 (1 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Thi Dung Nguyen

CASE NUMBER:  1732429

DIBP REFERENCE(S):  CLF2018/2732 OSF2009/011985

MEMBER:M. Edgoose

DATE:1 May 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 01 May 2020 at 8:36am

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – genuine and continuing de facto relationship – mutual commitment to a shared life – no evidence provided – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cl 100.221; r 1.15

CASES

Hasran v MIAC [2010] FCAFC 40

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 Immigration on 29 November 2017 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 January 2009 on the basis of her relationship with her sponsor. At that time, Class BC contained two subclasses: Subclass 100 (Spouse) and 110 (Interdependency). The applicant has made claims only for the Subclass 100 visa and does not claim to be in an interdependent relationship as required by Subclass 110. 

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221.

4. On 15 April 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about her partner visa application in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 29 April 2020, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The review applicant did not provide the information within the prescribed period and no extension of time was requested. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

6. It is appropriate to highlight that a decision maker is not required to make the applicant’s case. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. Although the concept of onus of proof is not appropriate to administrative decision-making, the relevant facts of the individual case have to be supplied by the applicant, in as much detail as is necessary to enable the examiner to establish the relevant facts.

7. In these circumstances, the Tribunal has proceeded to make a decision having regard to the information before it, including the information previously provided by the applicant to the Department.

8. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a ‘spouse’ relationship

10. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, amongst other things, that at the time of this decision, the applicant is the spouse of the ‘sponsoring spouse’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring spouse’ is the person who was specified as the applicant’s spouse or intended spouse in the related Subclass 309 application. In the present case the applicant claims to be the spouse of the sponsor who is a ‘sponsoring spouse’ within the meaning of that term. 

    Are the parties in a de facto relationship?

11. As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a married relationship, but may meet the criteria on the basis of being in a de facto relationship as defined r.1.15A(2) of the Regulations. A person is in a de facto relationship with another person of the opposite sex, 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, they are of full age and they are not in a prohibited relationship.

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 r.1.15A(3) which is attached to this decision.

13. The Tribunal has given regard to the information contained on both the Department and Tribunal files. The applicant has provided no any evidence to the Tribunal in relation to the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, the nature of persons' commitment to each other and any other circumstances of the relationship. The applicant submitted a review of this application to the Administrative Appeals Tribunal on 20 December 2017. At time of this decision no further information had been submitted to the Tribunal concerning the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, the nature of persons' commitment to each other and any other circumstances of the relationship. As stated above the Tribunal wrote to the applicant on 15 April 2020. The applicant did not respond to the Tribunal’s invitation. Further to this the Tribunal reached out to the applicant on two earlier occasions, 4 September 2018 and 20 March 2020 requesting further information. The applicant’s migration agent responded via email to the request for information dated 4 September 2018 requesting an extension of time to provide information. The migration agent stated in his email to the Tribunal that “our clients anticipate that they will have all the information by the end of business 5/10/2018”. No submission was submitted to the Tribunal by the applicant or the applicant’s migration agent. No response was received by the Tribunal to the 20 March 2020 invitation to provide further information.

14. The applicant submitted a copy of the delegates decision to the Tribunal at time of application. According to the Delegates decision the Department reached out to the applicant on multiple occasions between 13 April 2016 and 28 August 2017. The delegate wrote, “To date, there is no record of any further contact from you, your sponsor or your migration agent” at time of the delegates decision dated 29 November 2017.

15. Based on the limited information on the Department file regarding the circumstances of the relationship, the Tribunal is not satisfied that when the application was made and at the time of this decision, that the couple have demonstrated a mutual commitment to a shared life to the exclusion of all others. The Tribunal is not satisfied that the relationship between the applicant and sponsor is genuine and continuing. The Tribunal is not satisfied that they live together or do not live separately and apart on a permanent basis.

16. On the basis of the above the Tribunal is not satisfied that the requirements of r.1.15A(2)(a)-(c) are met at the time of decision.

17. Therefore, the applicant does not meet cl.100.221.

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 (Migrant) (Class BC) visa.

    M. Edgoose
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    …

    (3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:

    (ad)a Partner (Migrant) (Class BC) visa; or

    (ae)a Partner (Provisional) (Class UF) visa; or

    (af)a Partner (Residence) (Class BS) visa; or

    (ag)a Partner (Temporary) (Class UK) visa;

    the Minister must have regard to all of the circumstances of the relationship, including, in particular:

    (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 party to the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses;

    (b)the nature of the household, including:

    (i)       any joint responsibility for care and support of children, if any; and

    (ii)      the parties’ living arrangements; and

    (iii)     any sharing of responsibility for housework;

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married or in a de facto relationship with each other;

    (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;

    (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)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).

    (5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.