Smith (Migration)

[2020] AATA 608

Smith (Migration) [2020] AATA 608 (4 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Hayley Jane Smith

CASE NUMBER:  1901471

HOME AFFAIRS REFERENCE(S):          BCC2017/329649

MEMBER:P. Maishman

DATE:4 March 2020

PLACE OF DECISION:  Perth

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

Statement made on 04 March 2020 at 5:14pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – de facto partner – no appearance by applicant at hearing – no response to tribunal’s s 359 letter – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5CB(2), 65, 359, 359C, 360(3), 363A

Migration Regulations 1994 (Cth), r 1.09A(3), Schedule 2, cl 820.211(2)(a), 820.221

CASE
He v MIAC [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 (the Act).

2. The applicant applied for the visa on 24 January 2017 on the basis of her relationship with her sponsor, Mr Michael Egan. 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.820.211(2)(a) because the delegate was not satisfied the applicant was the spouse or de facto partner of the sponsor.

4. The applicant was represented in relation to the review by her registered migration agent.

5. The applicant was invited to appear before the Tribunal on 10 February 2020 and 18 February 2020 to give evidence and present arguments. The applicant provided medical certificates indicating she suffered depression/anxiety and declined to appear before the Tribunal. The Tribunal vacated the two hearing dates and opted to request information to support the applicant’s claims that she and her partner were in a spouse or de facto relationship.

6. On 18 February 2020 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information to support her claims that she and her partner are in a spouse or de facto relationship in writing.

7. The invitation was sent by email to the applicant’s registered migration agent which is the last address provided in connection with the review and advised that, if the information was not provided in writing by 3 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the [information and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review. The delegate’s decision record summarises the visa application history. The delegate notes the Department invited the applicant, via her registered migration agent, on 25 September 2018 to provide documents required to progress her application, including evidence of her claimed de facto relationship with her sponsor. The Department made a further request to the applicant for information on 21 November 2018 by email via the applicant’s registered migration agent, and also by post to the applicant’s last known address. The delegate notes that no response to either of these invitations was received. The delegate was concerned that the applicant had provided no evidence or information regarding the financial aspects of her relationship; no evidence or information about the nature of the applicant and her sponsor’s household; no evidence or information about the social aspects of the applicant and the sponsor’s relationship with one another; and no evidence or information regarding the nature of the applicant and sponsors commitment to each other.

11. The Tribunal sent the applicant a request for information on 23 January 2020 providing her with a list of evidence she might be able to obtain to address the matters the Tribunal was required to consider. The Tribunal received no response.

12. The Tribunal sent a further request on 18 February 2020 inviting the applicant to provide information to support her claims that she and her partner are a spouse or de facto relationship. The Tribunal received no response.

13. The issue in the present case is whether the applicant is the spouse or de facto partner of her sponsor.

    Whether the parties are in a spouse or de facto relationship

14. Clause 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 de facto partner of the sponsor who is identified as an Australian citizen by the delegate.

    Are the parties in a de facto relationship?

15. 'De facto partner' is defined in 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).

16. 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 r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

17. There is no evidence before the Tribunal that the applicant and sponsor share ownership of any assets; have any joint liabilities; that they pool their financial resources; owe any legal obligation in respect of the other party; or share day-to-day household expenses.

18. The Tribunal is not satisfied that the financial aspects of the applicant and sponsors relationship are indicative of a couple in a de facto relationship.

19. There is no evidence before the Tribunal that the applicant and sponsor have any joint responsibility for care and support of children. There is no evidence before the Tribunal that describes the parties living arrangements. There is no evidence before the Tribunal about any sharing of housework.

20. The Tribunal is not satisfied that the nature of the applicant and sponsors household is indicative of a couple in a de facto relationship.

21. There is no evidence before the Tribunal that the parties represent themselves to other people as being in a de facto relationship with each other. There is no evidence before the Tribunal from friends or acquaintances of the applicant and sponsor that expresses an opinion about the nature of their relationship. There is no evidence before the Tribunal that details the basis on which the applicant and sponsor plan and undertake joint social activities.

22. The Tribunal is not satisfied that the social aspects of the applicant and sponsors relationship are indicative of a couple in a de facto relationship.

23. There is no evidence before the Tribunal about the duration of the applicant and sponsors relationship or the length of time they have lived together. There is no evidence before the Tribunal that demonstrates the degree of companionship and emotional support the applicant and sponsor draw from each other. There is no evidence before the Tribunal that the applicant and sponsor see their relationship as long-term.

24. The Tribunal is not satisfied that the nature of the applicant and sponsors’ commitment to each other is indicative of a couple in a de facto relationship.

25. The Tribunal has considered the circumstances of the applicant and sponsors relationship including the matters set out in r.1.09A(3). There is no evidence before the Tribunal that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. There is no evidence before the Tribunal that the relationship between the applicant and the sponsor is genuine and continuing. There is no evidence before the Tribunal that the applicant and the sponsor lived together; or do not live separately and apart on a permanent basis.

26. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time the visa application was made or the time of this decision.

27. Therefore the applicant does not meet cl.820.211(2)(a) or cl.820.221.

28. There is no evidence before the Tribunal that the applicant has at any time been the holder of a Subclass 300 (Prospective Marriage) visa so the alternative criteria in cl.820.211(7); cl.820.211(8) and cl.820.211(9) do not apply.

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

    DECISION

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

    P. Maishman
    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).