Pila (Migration)

[2024] AATA 469

Pila (Migration) [2024] AATA 469 (5 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Vanissa Villarta Pila

CASE NUMBER:  2201346

HOME AFFAIRS REFERENCE(S):          BCC2017/2650706

MEMBER:Edward Howard

DATE:5 January 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 05 January 2024 at 2:22pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – applicant did not respond to the Tribunal’s invitation within the prescribed period – relationship with sponsor had ceased – applicant did not suffer family violence committed by the sponsoring partner – not satisfied that at the time of this decision, the applicant is the spouse of the sponsor – decision under review affirmed 

LEGISLATION 
Migration Act 1958, ss 5, 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 801.211, 801.221

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 (the delegate) on 2 February 2022 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 July 2017 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221 of Schedule 2 to the Regulations because, at the time of the delegate’s decision, the delegate found that the applicant was not in a de facto relationship with the sponsor, and none of the exceptions to the requirement to be in a genuine and continuing relationship applied.

4. On 26 September 2023, the Tribunal issued an invitation to the applicant pursuant to s 359(2) of the Act to provide ‘information in writing that may indicate you are the spouse or de facto partner of the sponsoring partner at present, or alternatively, any information that you believe maybe [sic] relevant to the exceptions.’ The invitation also included information about the exceptions under which the applicant could be granted a Partner visa.

5. The invitation stated that the requested information should be provided to the Tribunal by 10 October 2023, but that if the information could not be provided by this date, the applicant may request an extension of time. The invitation also stated that, in the event that no response was received within the period allowed, the Tribunal ‘may make a decision on the review without taking any further action to obtain the information’ and that the applicant ‘would lose any entitlement [he/she] might otherwise have had under the Migration Act to appear before [the Tribunal] to give evidence and present arguments.’

6. The applicant did not respond to the Tribunal’s invitation within the prescribed period, and no extension has been requested. In these circumstances, s 359C of the Act applies and, pursuant to s 360(3), the 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.

7. I have reviewed all of the documents before the Tribunal in relation to this matter. I note that:

   a.The applicant corresponded with the Tribunal both in writing and by telephone on 3 February 2022 in order to clarify their residential address. However, the applicant has not corresponded with the Tribunal in relation to the merits of their application.

   b.The invitation of 26 September 2023 referred to above was the second opportunity provided by the Tribunal for the applicant to provide information in support of her application. The Tribunal also issued an ‘Acknowledgement of Application’ letter to the applicant on 3 February 2022, and that letter relevantly stated that ‘if you wish to provide material or written arguments for us to consider, you should do so as soon as possible.’ While the applicant wrote to the Tribunal, by email, later on 3 February 2022 to confirm her residential address, no material or written arguments in support of her application for review was provided by the applicant in response to the Tribunal’s ‘Acknowledgement of Application’ letter.

   c.According to the delegate’s decision record, which the applicant submitted to the Tribunal with her review application on 2 February 2022, the applicant informed the department on 6 April 2020 that her relationship with the sponsor had broken down. Subsequently, the applicant was also invited by the department to provide information about her relationship or the exceptions to the requirements, by letter dated 17 September 2020.

   d.A department officer additionally contacted the applicant by phone on 7 December 2021 advising ‘that a decision was pending’, and providing the applicant ‘with a further seven days to provide additional information.’ Responses from the applicant to the department’s written and verbal correspondence were received on 5 October 2020 and 12 December 2021, respectively, and the provided information was before the delegate at the time of their decision.

8. In these circumstances, I have decided to proceed to decision without taking further steps to obtain information from the applicant. I consider that this is reasonable and appropriate in circumstances where the applicant has been given opportunities to provide information to the Tribunal but has failed to do so, without any reasons provided for her failures.

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

   ISSUES AND LAW

10. The issue in the present case is whether, at the time of decision, the applicant either continues to be sponsored by the sponsor, for the purposes of cl 801.211(2) of Schedule 2 to the Regulations, or one of the relevant exceptions to ongoing sponsorship applies, including where the sponsor has died (cl 801.221(5)), or family violence has occurred (cl 801.211(6)(c)(i)), or a child is involved (cl 801.211(6)(c)(ii)).

11. Clause 801.211 of Schedule 2 to the Regulations requires that, at the time of decision, the applicant meets one of the several alternative sub criteria. These include cl 801.211(2)(c), which requires that, at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The applicant is a 44-year-old woman from the Philippines. At the time of the visa application, she claimed to be in a de facto relationship with the sponsor, a now 71-year-old Australian citizen.

13. According to the visa application, the applicant and the sponsor entered into a de facto relationship in April 2014. The applicant was granted a Partner (Temporary) (Class UK) (Subclass 820) visa on 20 March 2019 on the grounds of being in a partner relationship with the sponsor. However, according to the delegate’s decision record, the applicant advised the department on 6 April 2020 that her relationship to the sponsor had ended.

14. The delegate’s decision record summarises the events that followed this disclosure. Relevantly, it states:

    A departmental officer wrote to you at your authorised contract address on 17 September 2020 by e-mail, inviting you to comment on this information. You were also provided with an opportunity to submit additional information.

    On the [sic] 5 October 2020 you provided a statement and a character reference in response.

    A departmental office [sic] contacted you by phone on 7 December 2021 advising that a decision was pending and provided you with a further seven days to provide additional information. In response you uploaded a range of documents into your ImmiAccount on 12^th December 2021 including a statement and four character references. The same documents were received by post on 14 December 2021.

15. The delegate’s decision record also addresses the applicant’s responses to the above correspondence on 5 October 2020 and 12 December 2021, respectively, and relevantly states:

    I note you provided a statutory declaration to the Department on 05 October 2020 stating the breakdown of your relationship with your sponsor and reasons why the Department should consider your application despite the relationship breakdown. You stated that you have a full time job and pay taxes, own a car, have financial savings and superannuation. You also stated your love for Australia, the people in this country, the culture and the company you work for and your desire is to live here and continue to work and contribute to the country by being a good tax payer.

    You were provided with additional time to submit any further evidence or statements in regards to your relationship breakdown. You stated that your sponsor had cheated on you and how you sacrificed your life away from your children just to be with him. In your response you also advised that you are a genuine application with no ulterior motives or intentions, you only desire is to live here as an Australian and to continue working with your employer Sanitarium and to contribute in the country by being a good taxpayer.

    I have considered your claims above and while I do accept that you would like to be

    considered for permanent residence for the reasons stated above, you have confirmed that you are no longer in a relationship with your sponsor and that the compelling reasons for permanent residence stated by the Department are not applicable in your case. You have not made any claims or provided any evidence that your relationship with your sponsor is ongoing and therefore I have concluded that you are not the spouse or de facto partner of your sponsor…

16. As mentioned earlier, the applicant has not provided any further information to the Tribunal about her relationship to the sponsor, or the applicability of any of the exceptions.

17. In these circumstances, having regard to the matters set out above, I find at the time of my decision that:

    a.The relationship between the applicant and the sponsor has ended. Accordingly, the applicant is not sponsored by the sponsor for the purpose of cl 801.221(2) of Schedule 2 to the Regulations.

    b.The applicant is not the holder of a subclass 820 visa, as a result of the Minister’s decision pursuant to section 345, 351, 391, 417, 454, or 501J of the Act. Accordingly, the applicant does not meet cl 801.211(2A) of Schedule 2 to the Regulations.

    c.In the absence of any evidence to the contrary, the sponsor has not died, the applicant did not suffer family violence committed by the sponsoring partner, and the applicant and sponsor do not share custody, access or maintenance obligations in respect of any dependent children of the relationship. Accordingly, the applicant does not meet the alternative criteria in cl 801.211(3), (4), (5) or (6).

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 (Residence) (Class BS) visa.

    Edward Howard
    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).