Pucay (Migration)

[2024] AATA 499

Pucay (Migration) [2024] AATA 499 (5 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Linda Sabado Pucay

REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)

CASE NUMBER:  2216050

HOME AFFAIRS REFERENCE(S):          BCC2019/5466516

MEMBER:Donna Petrovich

DATE:5 March 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 05 March 2024 at 9:42am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – relationship ceased and sponsorship withdrawn – no response to request for further information and loss of right to hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 359(2), 359C(1), 360(3)
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2), 820.221(1)(a)(i)

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 30 October 2019 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2) because the Department of Immigration and Border Protection was advised on 30 November 2021 that the relationship had ceased, and the sponsor had withdrawn sponsorship. The applicant was requested to submit further documents or indicate if she wanted to proceed or withdraw the application.  No further correspondence was received.

   Background

4. The applicant lodged a valid application for a Partner (Temporary)(Class UK) (subclass 820) and Partner (Residency)(Class BS)(Subclass 801) visa on 30 October 2019 on the grounds of being in a Partner relationship with sponsor Cristian Pabustan David.

5. The applicant’s agent notified the Department that the relationship was no longer ongoing and that the sponsor had withdrawn his sponsorship on 30 November 2021.

6. As such the applicant no longer met the criteria of at regulation 820.211(2)(a)(i) as required by 820.221(1)(a).

7. The Tribunal requested further evidence as a 359(2) request on the 14 December 2023, with a deadline of 4 January 2024.

8. The Tribunal received no request for an extension of time in which to provide the requested information. Although the Tribunal was not requested additional time, it allowed nonetheless an additional two-week extension to allow for any submissions from the applicant because of the Christmas break period. The Tribunal advised the applicant that if it did not receive the information within the time period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain the information.

9. As there were no further submissions and no response to seek an extension of time, the applicant was informed on 31 January that she had lost her right to a hearing and the Tribunal made a decision on the review without taking any further action to obtain the information, pursuant to s.360(3); because s.359c(1) applies to the applicant and the applicant was no longer entitled to appear before the Tribunal.      

10. The delegate previously found that the applicant was no longer the spouse of a person who meets the criteria at regulation 820.211(2)(a) as required by 820.221(1)(a).     

11. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant is in a genuine and ongoing relationship.

    Whether the parties are in a spouse or de facto relationship

14. 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.

15. ‘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?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

17. The applicant and sponsor provided evidence at the time of application that they were in a spouse relationship. 

18. 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).

    Are the other requirements for a spouse relationship met?

19. However, on 30 November 2021 the applicant’s agent advised the Department that the relationship had ceased, and that sponsorship had been withdrawn.

20. As a result the applicant is no longer the spouse of the person who meets the criteria at regulation 820.211(2)(a)(i). Further, in spite of being provided several opportunities to provide additional evidence, the Tribunal has not received any other information or evidence of any other circumstances, or any correspondence from the applicant.

21. There is no evidence that the sponsor is deceased. The Tribunal therefore finds that the applicant does not meet subclause 820.221(2).

22. There is no evidence that family violence has occurred. The Tribunal therefore finds that the applicant does not meet 820.221(3)(b)(i).

23. There is no evidence that there is a child of the relationship. The Tribunal therefore finds that the applicant does not meet 820.221(3)(b)(ii).

24. Therefore, as there is no further evidence, the Tribunal is satisfied that the relationship is not genuine and ogoing and that the relationship has broken down and the sponsor has withdrawn his sponsorship.   

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

26. Therefore, the applicant does not meet cl 820.211(2)(a) and cl 820.221.

    DECISION

27. 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).