Philip (Migration) - [2023] AATA 1404

Philip (Migration) [2023] AATA 1404 (28 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Stanley Philip
CASE NUMBER:  1914547
HOME AFFAIRS REFERENCE(S):          BCC2017/4093346
MEMBER:Edward Howard
DATE:28 April 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 28 April 2023 at 2:11pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – relationship with the visa applicant had ceased – parties do not have joint ownership of real estate or any major assets – no evidence was provided from the sponsor confirming reconciliation or her continuing sponsorship – visa applicant is not a credible or truthful witness – evidence of the visa applicant providing false or misleading information in relation to his visa application – visa applicant does not satisfy the criteria of PIC 4020(1)(a) – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 376
Migration Regulations 1994, r 1.09, Schedule 2, cls 820.211, 820.221, 820.226, Schedule 3
CASES
Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139

STATEMENT 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 3 November 2017 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 the basis that the visa applicant did not satisfy cl 820.221 at the time of the delegate’s decision.
The applicant appeared before the Tribunal on 18 April 2023 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUES AND LAW
There is a two stage process for onshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.
Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Philip (Migration)

Details

AGLC: Philip (Migration) [2023] AATA 1404
Case: [2023] AATA 1404
Decision Date: 28 April 2023

CaseChat Overview and Summary

This matter concerned an appeal by a visa applicant against the decision of the Department of Home Affairs to refuse to grant him a Partner (Temporary) (Class UK) visa. The applicant claimed to be in a de facto relationship with his sponsor, which was evidenced by a Queensland Civil Partnership Certificate registered in May 2017. The dispute arose because the sponsor had twice withdrawn her sponsorship, stating that the relationship had ceased. The applicant maintained that the relationship had not broken down, despite periods of separation and the sponsor living in separate accommodation.

The primary legal issues before the Tribunal were whether the applicant satisfied the criteria for the Partner (Temporary) (Class UK) visa, specifically concerning the genuineness and continuation of his de facto relationship with the sponsor, and whether he had provided false or misleading information in relation to his visa application, thereby failing to meet the criteria under Public Interest Criterion 4020(1)(a). The Tribunal was required to consider all the circumstances of the relationship, including financial, household, social aspects, and the nature of the commitment between the parties, as outlined in regulation 1.09A of the Migration Regulations 1994.

The Tribunal found that the applicant had not satisfied the criteria for the visa. It noted the sponsor's repeated withdrawals of sponsorship and the lack of evidence of reconciliation or continuing sponsorship. Furthermore, the Tribunal concluded that the applicant was not a credible or truthful witness and had provided false or misleading information in his visa application. The Tribunal considered the various factors outlined in regulation 1.09A, including the lack of joint ownership of major assets, the cessation of cohabitation, and the sponsor's assertion that the relationship had ended.

Consequently, the Tribunal affirmed the decision of the Department not to grant the visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The parties’ commenced living together as a couple in October/November 2015. The parties provided a Queensland Civil Partnership Certificate registered on 1 May 2017. On the evidence, the parties were in a de facto relationship that was valid for the purposes of the Act as required by s 5CB(2) at the time of the application for a visa.Evidence of the Visa Applicant The evidence of the visa applicant is that the parties were initially Facebook friends and then met in person in Brisbane in mid-2015. Their relationship subsequently developed and the sponsor moved into the visa applicants unit at Annerley in about October/November 2015. The visa applicant gave evidence that the parties stayed the unit at Annerley for about one year and then moved to Laidley, sharing a house with other people. The owner of the property was a contractor and arranged work for the visa applicant on local farms. After Laidley, the parties moved to a unit at Mount Gravatt, then to a unit in Greenslopes, followed by a house in Inala. The parties then moved to a unit in Margaret Street, Brisbane City which he described as student accommodation. The evidence of the visa applicant is that whilst they were living in Margaret Street, the parties’ had an argument and his partner left the unit and went to live with her aunt in Toombul, Brisbane. This was in early September 2018, at which time the sponsor advised the department that the relationship between the parties had ceased and she withdrew her sponsorship, by letter from their migration agent. On 5 September 2018, the visa applicant wrote to the Department stating that the relationship had not broken down. A further letter was received from the migration agent on 10 October 2018, which confirmed reconciliation had occurred between the parties. On 26 March 2019, the sponsor again advised the Department that the relationship had ceased via a letter from their migration agent and she withdrew her sponsorship for a second time. On 23 April 2019, the visa applicant provided certain evidence in support of his claim that the parties were living together or were not living separately and apart on a permanent basis. This information included a customer receipt from St George Bank on 8 April 2019, a letter from the visa applicant on 22 April 2019 and a statutory declaration from Mr Bill Toroso dated 21 April 2019. This information is referred to in the Decision Record of the delegate dated 28 May 2019. It was noted by the delegate that since notification was received from the sponsor on 29 March 2019 that the relationship had ceased, the visa applicant had provided limited evidence in support of the claim that the relationship was genuine and continuing. At the Hearing, the visa applicant informed the Tribunal that he moved to Sydney in about July 2019. He eventually gained employment working in a Coles warehouse, working 40 – 45 hours per week at an hourly rate of $57 per hour. He stated that the sponsor has continued to live in Queensland, renting a room in a premises at Archerfield. His evidence is that the sponsor is employed in a butcher shop nearby.

Decision

Reasons for decision

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.Edward HowardMemberATTACHMENT - Extract from Migration Regulations 19941.09A 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).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.Edward HowardMemberATTACHMENT - Extract from Migration Regulations 19941.09A 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).