Saunders (Migration) - [2024] ARTA 109

Saunders (Migration) [2024] ARTA 109 (26 November 2024)
Decision and
Reasons for Decision
Applicant:Mrs Clare Ann Saunders
Respondent:  Minister for Home Affairs
Tribunal Number:  2109926
Tribunal:Edward Howard
Date:26 November 2024
Place:Brisbane
Decision:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 26 November 2024 at 3:31pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Family Law Act 1975
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.09
CASES
He v MIBP [2017] FCAFC 206
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 review applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The review applicant applied for the visa on 21 December 2018 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.
BACKGROUND
The review applicant is Ms Clare Ann Saunders, aged 50 years, a citizen of the United Kingdom. The sponsor is Mr Alan Owen Rangomai Booth, aged 58 years, an Australian citizen. The parties claim to have met in December 2016 and committed to a de facto relationship on 2 December 2017. An application for a Partner Visa was lodged on 21 December 2018.
On 29 November 2020, the Department was advised that review applicant’s relationship with the sponsor had ceased.
On 8 June 2021, the Department sent correspondence to the review applicant informing her that the Department had received information that the relationship between her and the sponsoring partner had ceased. The letter referred the review applicant to the circumstances in which the application could continue despite the relationship ending, namely:
·The death of the sponsoring partner
·Family violence
·Certain court orders or responsibilities in relation to children.
The letter invited comment from the review applicant and allowing 28 days to respond to the letter. The review applicant did not provide any further evidence or submissions concerning the breakdown of the relationship with the sponsor.
On 15 July 2021, the delegate provided a Decision Record, which determined that, whilst satisfied that the review applicant and sponsor were in a genuine de facto relationship at the time of application, they failed to continue to meet the requirements of cl 820.211(2) at the time of decision and therefore did not satisfy cl 820.221.
On 4 August 2021, the review applicant lodged an Application for Review with the Administrative Appeals Tribunal, now the Administrative Review Tribunal (the Tribunal), to review the decision of the delegate to refuse the subclass 820 visa.
Subsequently, the review applicant provided further evidence and submissions to the Tribunal on 4, 5 and 9 April 2021.
On 5 November 2024, the Tribunal forwarded a Notice of Hearing to the review applicant, informing her that the Tribunal had considered the material before it, but was unable to make a favourable decision on this information alone. The review applicant was informed that a Hearing of this matter would take place at 10:00am on Wednesday 20 November 2024, and she was invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in her case.
The review applicant was requested to complete the Response to Hearing Notice form which was enclosed with the correspondence and return it to the Tribunal within seven days of receipt of the letter. The review applicant was informed that if she was not able to appear as scheduled, that she would need to advise the Tribunal as soon as possible and that changes to the Hearing may occur if the Tribunal is satisfied that it is reasonable and that there are good reasons for doing so.
On 8 November 2011, the Tribunal received an email from the review applicant’s email provider, returning the email to the Tribunal with a message that “The recipient’s inbox is out of storage space”. As at the date of this decision, the review applicant had not returned a completed Response to Hearing Notice form to the Tribunal.
On the morning of the Hearing and after the time scheduled for commencement, as the review applicant had not arrived or been in contact with the Tribunal, Tribunal officers attempted to contact the review applicant via the telephone number provided by the review applicant for the purposes of the review.
Tribunal officers attempted to make contact with the review applicant via this telephone number at 11 AM, 11:05 AM and 11:19 AM. The review applicant did not answer any of these phone calls. In view of these events, the Tribunal cancelled the Hearing at 11:20 AM.
Section 106 of the Administrative Review Tribunal Act 2024 (the Act) outlines circumstances in which the Tribunal may reach a decision without a Hearing. Pursuant to s.106 (1):
“The Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the Hearing of the proceeding if any of subsections (2) to (5) applies.”
Relevantly, s.106(5) states as follows:
“This subsection applies if:
(a) a party to the proceeding fails to appear at a Tribunal case event that relates to the proceeding; and
(b) the party is not a non-participating party to the proceeding or Tribunal case event; and
(c) the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event ; and
(d) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.”
The Tribunal is satisfied that the review applicant received appropriate notice of the date, time and place of the Hearing. The Tribunal is further satisfied that the issues for determination in the proceeding can be adequately determined in the absence of the parties.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Is the applicant sponsored?
Clause 820.211 requires at the time of application, the review applicant meets one of several alternative sub criteria. These include 820.211(c) which requires that the review applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).
At the time of application the review applicant was sponsored by Mr Booth, who at that time was over the age of 18 years and an Australian citizen. On the basis of these facts the Tribunal finds the provisions in cl.820.211 were met at the time of application.
Clause 820.221 provides for time of decision criteria and relevantly states:
(1) In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:
(a)  continues to meet the requirements of the applicable subclause; or
(b)  meets the requirements of subclause (2) or (3).
(2)  An applicant meets the requirements of this subclause if the applicant:
(a)  would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and
(b)  satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died.
(3)  An applicant meets the requirements of this subclause if:
(a)  the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and
(b)  either or both of the following circumstances applies:
(i)  either or both of the following:
(A)  the applicant;
(B)  a dependent child of the sponsoring partner or of the applicant or of both of them;
has experienced family violence committed by the sponsoring partner;
(ii)  the applicant:
(A)  has custody or joint custody of, or access to; or
(B)   has a residence order or contact order made under the Family Law Act 1975 relating to;
at least 1 child in respect of whom the sponsoring partner:
(C)  has been granted joint custody or access by a court; or
(D)  has a residence order or contact order made under the Family Law Act 1975; or
(E)  has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.
As referred to in cl 820.221 above, the review applicant is required to show that at the time of decision, she continues to be sponsored by the sponsor, which sponsorship must have been approved by the Minister and be still in force. The relevant clause provides exceptions, in certain circumstances, where the sponsor has died, or where family violence has been committed, or where a child is involved.
On 29 November 2020, the Department was advised that review applicant’s relationship with the sponsor had ceased. The review applicant has provided no evidence which would demonstrate that the relationship with Mr Booth did not cease, or that they have subsequently reconciled.
The Tribunal finds that the review applicant is no longer in a spousal relationship with her sponsoring partner. As a consequence, the review applicant does not satisfy the requirements of cl 820.221(1)(a), which required her continue to meet cl 820.211(2)(c), namely that she is sponsored by her spouse or de facto partner.
There is no evidence before the Tribunal that Mr Booth is deceased and as a consequence the provisions of cl 820.221(2) are not met. There is also no evidence that there is a child of the relationship, or that the review applicant has experienced family violence committed by Mr Booth. Accordingly, the provisions of cl 820.221(3) are not met.
In view of the above, the Tribunal finds that the relationship between the review applicant and her sponsoring partner has ceased. Further to this, the Tribunal finds that none of the exceptions exist as provided for in cl 820.221(2)&(3).
Therefore, on the evidence before the Tribunal, the requirements of cl 820.221(1)(a), cl 820.221(2) and cl 820.221(3) are not met.
For the reasons above, the review applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the review applicant a Partner (Temporary) (Class UK) visa.
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).