SHAKIR (Migration)

[2019] AATA 3721

SHAKIR (Migration) [2019] AATA 3721 (25 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Saif Salam SHAKIR

CASE NUMBER:  1905348

HOME AFFAIRS REFERENCE(S):           BCC2017/4800089

MEMBER:Susan Trotter

DATE:25 July 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 25 July 2019 at 6:09pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – relationship ceased – claimed domestic violence – no evidence provided – did not attend hearing – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), cl 820.221, rr 1.22, 1.23,

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 18 February 2019 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 December 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 (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.820.221 of Schedule 2 to the Regulations as required. In particular, the delegate noted that they had received information that the relationship had broken down. The delegate also noted in its decision record that the applicant had been provided with the opportunity between 23 December 2018 and 18 February 2019 to comment on the information that the relationship had broken down and to submit additional information, with no response received to these requests. The delegate was therefore not satisfied that the applicant was the spouse or de facto partner of the sponsor at the time of decision as required, thus not satisfying one of the possible subclauses to meet cl.801.221. Further, the delegate found that none of the alternative subclauses of cl.801.221 were met such that cl.801.221 was not satisfied as required.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 7 March 2019.

5. On 21 June 2019, the Tribunal wrote to the applicant pursuant to s.359A and s.359(2) of the Act. The applicant was invited to comment on or respond to the information that the relationship with the sponsor had ended and the sponsor had withdrawn her sponsorship. Further, the applicant was invited to provide information in relation to meeting the required criteria to be satisfied for the grant of the visa if he was no longer in a relationship with the sponsor.

6. On 5 July 2019, the Tribunal received a response to its 21 June 2019 invitation from the applicant’s representative as follows:

   We refer to the above matter and act for the above named.

   The applicant advised our office that he is a victim of domestic violence and is receiving ongoing therapy treatment to help him recover. We are still waiting to receive psychological and other expert reports which we will provide to the Tribunal as soon as possible.

7. On 8 July 2019, the Tribunal wrote to the applicant care of his representative and recipient advising that it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 25 July 2019 and advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.

8. No response was received to the Tribunal’s correspondence of 8 July 2019 and the applicant did not appear at the scheduled hearing before the Tribunal on the day and at the time and place at which he was scheduled to appear. The letter advising of the hearing date was sent to the email address provided by the applicant for his representative and recipient, and notably to the same email address to which the 8 July 2019 invitation had been sent, to which the applicant had responded via his representative. The Tribunal is satisfied that the applicant was notified of the hearing in accordance with the statutory requirements. In these circumstances, and pursuant to s.362B of the Act, the Tribunal decided to make its decision on the review without taking any further steps to enable the applicant to appear before it. The Tribunal has also taken into account the fact that the applicant has had the benefit of representation from a registered migration agent in order to assist them with this application and considers it reasonable to expect that applicant’s representative, as a registered migration agent, has an understanding of the requirements of the legislation and the implications of not attending the hearing to which the applicant was invited, which consequences were also set out in the Tribunal’s letter of 8 July 2019 inviting the applicant to a hearing. The Tribunal does not propose to exercise its powers under s.363(1)(b) of the Act in the applicant’s favour to adjourn the review and postpone its decision-making any further to allow him additional time. This matter has therefore been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The criteria that must be met for a Subclass 820 visa to be granted are set out in Part 820 of Schedule 2 to the Regulations.

11. To be granted a Subclass 820 visa, the applicant in this matter must meet cl.820.221(1)(a) which requires that he continues to meet the requirements of cl.820.211(2) including that he continues to be the spouse or de facto partner of the sponsor or, alternatively, the requirements of cl.820.221(2) or (3) must be met.

12. ‘Spouse’ is defined in section 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: subparagraphs 5F(2)(a) - (d) of the Act. In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in regulation 1.15A(3).

13. ‘De facto partner’ is defined in s.5CB of the Act and 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).

14. In forming an opinion as to the matters required in s.5CB(2), regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the persons’ household and the nature of their commitment to each other, as set out in r.1.09A(3), which is extracted in the attachment to this decision.

15. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the visa applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the visa application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: r.2.03(4), (5).

16. As noted in the delegate’s decision record, and as referred to in the Tribunal’s letter to the applicant of 21 June 2019, the Department received information that the relationship between the applicant and the sponsor was no longer continuing and that the sponsor had withdrawn her sponsorship. There is no evidence before the Tribunal to suggest that that does not remain the case and this information was not disputed in the letter from the applicant’s representative dated 5 July 2019. Clause 820.221(1)(a) is therefore not met.

17. As regards cl.820.221(2) there is no evidence before the Tribunal that the sponsor has died. Clause 820.221(2) is therefore not met.

18. As regards cl.820.221(3)(b)(i), it has been suggested on behalf of the applicant that the applicant had been a victim of family violence.

19. Under r.1.22 and r.1.23 of the Regulations, a person is taken to have suffered or committed family violence if either:

    (a)  there is evidence tested before a court in one of a number of prescribed manners (known as a judicially determined claim of family violence); or

    (b)  the visa application includes a non-judicially determined claim of family violence where either a joint undertaking to a court has been made by the alleged victim and alleged perpetrator or evidence in accordance with r.1.24 (which also refers to r.1.25) is provided and either the Minister (or the Tribunal on review) is satisfied that the alleged victim has suffered relevant family violence or an opinion of an independent expert has been given that the alleged victim has suffered relevant family violence (known as a non-judicially determined claim of family violence).

20. Whilst it has been stated on 5 July 2019 that the applicant is a victim of domestic violence and is receiving ongoing therapy treatment to help him recover, with psychological and other expert reports to be provided to the Tribunal, there has been no further contact by the applicant or his representative with the Tribunal since that date. The applicant did not attend the scheduled hearing, at which time the Tribunal could have sought evidence in relation to satisfying the necessary criteria if the applicant had appeared at hearing.

21. There is therefore no evidence of either a judicially or non-judicially determined claim of family violence before the Tribunal. The requirements of cl.820.221(3)(b)(i) are therefore not met.

22. As regards cl.820.221(3)(b)(ii), there is no evidence before the Tribunal of a child in relation to whom the applicant and the sponsor both have certain obligations. The requirements of cl.820.221(3)(b)(i) are therefore not met.

23. As neither the requirements for cl.820.221(3)(b)(i) or (ii) are met, the Tribunal is therefore not satisfied that cl.820.221(3) is met.

24. As the Tribunal has found that neither cl.820.221(1)(a) nor cl.820.221(2) nor cl.820.221(3) is satisfied, it follows that the requirements of cl.820.221 are therefore not met as required.

    Conclusion

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

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Susan Trotter
    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).