Samala (Migration)

[2024] AATA 4282

Samala (Migration) [2024] AATA 4282 (1 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Abigail Anteojo Samala

REPRESENTATIVE:  Mrs Marimi Tanag (MARN: 1386887)

CASE NUMBER:  2304797

HOME AFFAIRS REFERENCE(S):          BCC2020/1822858

MEMBER:Moira Brophy

DATE:1 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 01 October 2024 at 10:31am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – relationship ceased – no response to invitation to provide evidence – no evidence of financial, household or social aspects of relationship, or nature of commitment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65, 359, 359A, 359C(2), 360(2), (3)
Migration Regulations 1994 (Cth), r 1.09A(3), Schedule 2, cl 801.221(2)(c)

CASE
He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

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 on 15 March 2023 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 30 June 2020 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). 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 applicant was born in the Philippines on [Date].Her sponsor was born on [Date] and is an Australian citizen by birth. Neither party declared any previous relationships.

4. At the time of application, the parties stated they met on 1 July 2017 and commenced a defacto relationship. They registered their relationship with the Registry of Births, Deaths and Marriages on 13 March 2019.

5. On 25 June 2021 an 820 visa was granted.

6. On 5 January 2023 the Department was advised the relationship between the applicant and sponsor had ceased.

7. On 7 January 2023 the department wrote to the applicant advising it had received information the relationship had ceased and sought information as to whether any of the exceptions as set out in the legislation applied.

8. On 15 March 2023 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221 because the relationship between the applicant and the sponsor had broken down and there was no evidence the applicant was able to meet any of the exceptions to the legislative provisions.

9. On 4 April 2023 the applicant applied to the Tribunal for a review of the decision of the delegate.

10. By letter dated 2 September 2024, the applicant was requested to provide information in relation to her application for review. The applicant was advised that is a requirement for the grant of the visa that at the time of visa application, and at the time of the decision, you are the spouse or de facto partner of the sponsoring partner, unless one of the exceptions applies. The applicant was advised if she was no longer in a relationship, there are exceptions under which she could be granted the Partner visa. These include:

    • The death of the sponsoring partner
    • Family violence
    • Certain court orders or responsibilities in relation to children.

    The applicant was invited to provide information in writing that may indicate she was the spouse or de facto partner of the sponsoring partner at present, or alternatively, any
    information that you believe maybe relevant to the exceptions.

    The applicant was advised the information, in writing, should be received by 16 September 2024. If the information is in a language other than English, it must be accompanied by an English translation from an accredited translator and that if she or another person authorised by her could not provide the information by 16 September 2024, she or that other person may ask for an extension of time in which to provide the information. If an extension of time request is made, it must be received by the Tribunal  before 16 September 2024 and it must state the reason why the extension of time is required. Any requests for an extension would be considered and the applicant advised whether or not the extension has been granted.

11. Relevantly, the invitation noted that if the Tribunal did not receive a response within the period allowed or as extended, the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal at a hearing.

12. The applicant did not respond to the invitation under s 359A of the Act. Nor did the applicant seek an extension to respond to the invitation prior to the time nominated for a response to be provided.

13. By reason of s 359C of the Act, if a person is invited in writing under s 359 of the Act to give information and does not give that information before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information. Under s 360 of the Act, the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments, although s 360(2) of the Act provides that this section does not apply if, relevantly, s 359C(2) of the Act applies to the applicant.

14. Subsection 360(3) of the Act provides that if any of the paragraphs in s 360(2) of this section apply, the applicant is not entitled to appear before the Tribunal. In summary, if the Tribunal invites the applicant to comment on or respond to adverse information within a certain period of time and the applicant does not do so, the applicant loses the right to a hearing.

15. The Tribunal is satisfied that the applicant was served with the invitation under s 359A of the Act because an electronic copy of the invitation was sent to the email address of the applicant which was specified on the application for review form that was lodged with the Tribunal. No error message indicating that the email was not successfully transmitted was received by the Tribunal.

16. The Tribunal is satisfied having regard to these legislative provisions and the failure of the applicant to respond, the applicant is no longer entitled to a hearing.

17. By letter dated 2 September 2024, the applicant was advised of the above and that the Tribunal would proceed to consider his review based on the available material.  The Tribunal has therefore determined to proceed under s 359C of the Act.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether the applicant and her sponsoring spouse continue to be in a genuine and continuing relationship.

    Whether the parties are in a spouse or de facto relationship.

21. Relevantly to this matter, cl 801.221(2)(c) 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. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

    Are the parties in a de facto relationship?

22. De facto partner' is defined in s 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).

23. 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

24. The Tribunal finds that there is no evidence that the parties have joint ownership of assets, joint liabilities or that the applicant and her sponsor pool financial resources and share day-to-day household expenses.

    Nature of the household 

25. The Tribunal finds that there is no evidence that the applicant is residing with her sponsor, sharing household tasks with her sponsor or has any joint responsibilities for the care and support of children with her sponsor.

    Social aspects of the relationship

26. The Tribunal finds that the applicant has provided no evidence that she represents herself as being in a genuine and continuing relationship with her  sponsor.  Since the application was lodged there has been no further evidence provided by friends or family about the nature of their relationship or evidence that they plan and undertake joint activities.

    Nature of parties’ commitment to each other

27. The Tribunal finds that there is no evidence that the applicant and her sponsor provide companionship and emotional support to each other or that they see the relationship as long-term. 

    CONCLUSION

28. The Tribunal is not satisfied on the limited evidence before it that at the time of this decision, the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied that at the time of this decision, the applicant is the spouse of the sponsor.

29. There is no evidence before the Tribunal that the sponsor has died. There is no evidence in relation to any family violence.

30. There is no evidence that the applicant has a biological child with the sponsor or that there are relevant court orders or responsibilities in relation to a child in respect of whom the sponsoring partner also has the relevant court orders or responsibilities under the Family Law Act 1975.

31. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time of this decision. Therefore, the applicant does not meet cl.801.221(2)(c).

32. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).

33. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Moira Brophy
    Member