Woo (Migration)

[2020] AATA 3791

Woo (Migration) [2020] AATA 3791 (9 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jongkwan Woo

CASE NUMBER:  1837009

HOME AFFAIRS REFERENCE(S):          BCC2017/4423364

MEMBER:Joseph Francis

DATE:9 September 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 09 September 2020 at 2:17pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – de facto relationship – no response to tribunal’s invitation to provide information – no evidence of relationship history or current status other than provided to department – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 820.211, 820.221

CASES
Hasran v MIAC [2010] FCAFC 40
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 (the Act).

2. The applicant applied for the visa on 21 November 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.820.211 (2) of the Migration regulations.

4. The applicant claimed to be in a de facto relationship with the sponsor, and as such the delegate assessed the application under S.5CB for de facto couples.  Regulation 2.03A requires a minimum de facto relationship period of 12 months prior to the date of the visa application.

5. The delegate considered the evidence provided with consideration for Regulation 1.09A and was no satisfied that satisfied that the applicant had demonstrated that the parties had been in a de facto relationship for 12 months prior to the time of application.

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

   Consideration of claims and evidence

7. The issue in the present case is whether the visa applicant and visa sponsor were in a genuine de facto relationship for 12 months prior to the visa application dated 21 November 2017.

8. The delegate refused to grant the visa and outlined their reasons in a decision dated 28 November 2018.

9. The applicant lodged an application for review by the Tribunal on 17 December 2018.

10. A copy of the delegates decision record was included with the application for review. No other evidence was submitted.

11. The applicant notified the Tribunal of change of address details on 18  December 2018.

12. On 25 August 2020 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information to with regard to the relationship in writing. The invitation was sent to the applicants registered migration agent, Mrs Anna Mihyun Jun, and advised that, if the information was not provided in writing by the prescribed period, being 8 September 2020, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

13. The review applicant did not provide the information within the prescribed period and no extension of time was requested.

14. 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.

15. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

    Whether the parties are in a spouse or de facto relationship

16. Clause 820.211 (2)  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 an Australian citizen.

    Are the parties in a de facto relationship for 12 months prior to the visa application?

17. '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).

18. 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.

19. The evidence is required to demonstrate the parties were in such a relationship that commenced on or before the 21 November 2016 in order to comply with Section 2.03A.

20. The Tribunal notes no submission was made to the delegate for consideration of any compassionate or compelling reasons to consider a waiver of this 12-month requirement.

21. Other than the delegates decision record and reasons, no evidence whatsoever was provided to the Tribunal.  The Tribunal can therefore only asses the application on the evidence that was provided to the department with the visa application and was considered by the delegate.

22. The Tribunal considered each matter in r.1.09A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.09A(2):

    Financial aspects of the relationship

23. No evidence was provided to support any joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses prior to 9 January 2017.

    Nature of the household

24. No evidence of weight was provided to support any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework or that the parties even shared a household prior to June 2017.

25. A hand-written, incomplete lease with no address was submitted to the department.  The delegate, as does the Tribunal, places no weight on this as evidence that the parties resided together.

26. A From 888 statutory declaration from Jin O Kim claims that you resided together at an address in Kensington, WA from May 2016 until January 2017.  In the absence of any other supporting documents, the delegate, as does the Tribunal, placed little weight on this as evidence that the parties were sharing a household from  or before 21 November 2016.

    Social aspects of the relationship

27. The Tribunal considered whether parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

28. No evidence was provided to support the claim that the parties were in a de facto relationship from or before 21 November 2016.

    Nature of persons’ commitment to each other

29. The Tribunal considered the duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

30. No evidence was provided to the department to support the claim the parties were in a de facto relationship from or before 21 November 2016

31. Regulation 2.03A(3) requires the applicant must have been in the de facto relationship for at least the 12-month period ending immediately before the date of the application. This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

32. No submission was made either to the department or the Tribunal to suggest Regulation 2.03A(3) should not apply. No submission was made request consideration of compelling and compassionate reasons to waiver this requirement.

33. In the absents of any evidence and noting the applicant did not reply to the invitation to provide further information to the Tribunal, The Tribunal is not satisfied the parties were in a de facto relationship for 12 months prior to the visa application on 21 November 2017.

    Decision

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

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

36. For these reasons the Tribunal is not satisfied that the applicant meets the additional criteria prescribed in r.2.03A.

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

    Joseph Francis
    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).