Patel (Migration)
[2022] AATA 2634
•5 April 2022
Patel (Migration) [2022] AATA 2634 (5 April 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Sarthak Pravinbhai Patel
REPRESENTATIVE: Mr Neeraj Sharma (MARN: 0746230)
CASE NUMBER: 1814512
HOME AFFAIRS REFERENCE(S): BCC2016/2480133
MEMBER:M. Edgoose
DATE:5 April 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 05 April 2022 at 12:18pm
CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – the applicant and sponsor were housemates – limited evidence – no current evidence before the Tribunal that the applicant and sponsor continue to be in a genuine de facto relationship – relationship is non-genuine–decision under review affirmedLEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 2.03, Schedule 2, cls 820.211, 820.221CASES
He v MIBP [2017] FCAFC 206STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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).
The applicant applied for the visa on 26 July 2016 on the basis of his relationship with his 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 8 May 2018, on the basis that the visa applicant did not satisfy cl 820.211(2)(a).
On 5 April 2022 prior to the scheduled hearing the applicant informed the hearing attendant that he did not wish to proceed with the hearing and that the Member could made a decision on the papers.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant lodged his application for review on 18 May 2018, approximately 4 years ago. At time of lodging his review the applicant submitted a copy of the delegates refusal decision. The Tribunal notes that no further submissions have been submitted since 18 May 2018. Given this the Tribunal has reached its decision based on the evidence before it. That being the Department file and the delegates decision.
Whether the parties are in a spouse or de facto relationship
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 the sponsor who is an Australian citizen.
Are the parties in a de facto relationship?
'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).
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.
Financial aspects of the relationship
According to the delegate’s decision dated 8 May 2018 the delegate was not satisfied that the applicant had provide sufficient evidence regarding the financial aspects of the relationship, to support his claim that he was in a genuine de facto relationship with the sponsor. The delegate considered that the applicant had manufactured the required evidence to facilitate his visa application.
The delegate acknowledged that the applicant had provided evidence of a joint bank account and utility bills. The delegate accepted that the applicant may have resided at the sponsor’s residence at some point but as a sub-tenant and not as a de facto partner as the applicant had claimed. As a sub-tenant the applicant may have shared some of the day-to-day household expenses.
The applicant also provided the Department with copies of the sponsor’s Centrelink application and tax return statement for 2016/17 that declared him as the sponsor’s partner. The delegate placed little weight on the tax return statement in light of the other evidence the applicant had provided.
The Tribunal shares the view of the delegate that the evidence provided to the Department as part of the visa application regarding the financial aspects of the relationship had been manufactured to facilitate the application.
Given that the applicant has not provided the Tribunal with any evidence regarding the financial aspects of the relationship to support his claim of being in a genuine de facto relationship with the sponsor the Tribunal places significant weight on the delegate’s findings.
Nature of the household
There is no evidence before the Tribunal or on the Department file that the applicant and sponsor share any joint responsibility for care and support of children. The Tribunal notes that it would appear the sponsor has children from a previous relationship.
According to the delegate’s decision the Tribunal also accepts that the applicant and sponsor may have resided together fore a point in time base on the information provided to the Department at the time of the visa application. However, the delegate was not satisfied based on the evidence provided that this amounted to the applicant and sponsor being in a genuine committed de facto relationship. The Tribunal considers that based on the limited evidence available at time of this decision that the applicant and sponsor were housemates and that the applicant may have sub-let a room at the sponsors residence.
There is no evidence before the Tribunal of any sharing of housework.
Given the limited evidence regarding the nature of the household the Tribunal places significant weight on the findings of the delegate.
Social aspects of the relationship
The Tribunal has given careful consideration to the limited evidence before it regarding the social aspects of the relationship. The Tribunal acknowledges that the applicant submitted to the Department a number of photographs of themselves and with third parties and several Form 888 statutory declarations. The delegate was of the view that the people who provided the statutory declarations had met the applicant and sponsor however, the statements were brief and did not provide any convincing reasons as to why they believed the relationship was genuine and continuing. For these reasons the delegate gave them little weight.
The applicant stated in his application that they present themselves as a couple at their temple and at weddings and festivals. The applicant also claimed in his relationship application that as a couple they have the blessing of both sides of the family. However the delegate was no satisfied that the applicant had provided convincing evidence that the applicant and sponsor are known and accepted as a couple in the community or that your families are aware of your claimed de facto relationship.
Given that the applicant has not provided any current evidence to the Tribunal regarding the social aspects of the relationship the Tribunal places significant weight on the delegate’s findings.
Nature of the persons’ commitment to each other
There is no current evidence before the Tribunal regarding the nature of the persons’ commitment to each other. Given this the Tribunal has considered that the most up to date evidence regarding the nature of the persons’ commitment to each other is the findings of the delegate dated 8 May 2018.
The delegate found that the Department had conducted social media checks in February 2018 and discovered that the applicant’s current marital status on Facebook is ‘engaged’ to be married to a third party who currently resides in India. Departmental records confirmed that the applicant was in India between 5 March 2017 and 2 April 2017, which supported the adverse information that had been uncovered. On 22 February 2018 the Department wrote to the applicant inviting him to comment on the adverse information. The delegate notes that the applicant did provided a response however the applicant omitted any mention of the adverse information and changed his records on Facebook. The delegate considered this to be a deliberate attempt to conceal this information from the Department.
In light of this information the Department undertook further checks into the applicant and also that of the sponsor. These checks according to the delegate’s decision found a range of further contradicting information regarding the applicant and the sponsor. One piece of evidence that was identified regarding the applicant was that on arrival back into Australia on 1 April 2017 the applicant supplied a different residential address than the one supplied to the Department. The applicant submitted an address in the suburb of Carnegie which contradicted the claimed address he had supplied to the Department where he claimed he had been living at an address in Noble Park with the sponsor.
The delegate also found that it would be reasonable to expect that a genuine couple would recall a consistent account of when they first met each other and how the relationship developed. The delegate found that the applicant and sponsor provided inconsistent / conflicting historical accounts of the development of the relationship which further led the delegate to question the genuineness of the relationship.
Given that the applicant had provided inconsistent information on a number of occasions the delegate was not satisfied the applicant was in a genuine, continuing and committed relationship with the sponsor. The applicant has not provided any current evidence to the Tribunal regarding nature of the persons’ commitment to each other. The Tribunal therefore places significant weight on the delegate’s findings.
Overall, there is no current evidence before the Tribunal that the applicant and sponsor continue to be in a genuine de facto relationship. 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 and the time of this decision.
Therefore, the applicant does not meet cl 820.211(2)(a) and cl 820.221.
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.
The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.
There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement. The applicant provided limited information to the Department regarding the length of the relationship. Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.
For these reasons the Tribunal is not satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
M. Edgoose
MemberATTACHMENT - 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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