Zafar (Migration)

[2023] AATA 4721

Zafar (Migration) [2023] AATA 4721 (30 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Umair Zafar

CASE NUMBER:  1834428

HOME AFFAIRS REFERENCE(S):          CLF2014/83818

MEMBER:Donna Petrovich

DATE:30 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) (Subclass 801) visa.

Statement made on 30 November 2023 at 4:24pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – no response to s.359 invitation – loss of the right to a hearing – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – sponsorship withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 801.221

CASES
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 on 14 November 2018 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 12 June 2014 on the basis of his relationship with his 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 delegate refused to grant the visa on the basis that the applicant did not satisfy 801.221(2) of the Regulations.  This is because the delegate found that the responses to the unfavourable information did not adequately explain discrepancies in evidence.  It was determined by the delegate that these discrepancies were culmatively indicative of a couple not living together in a genuine and committed relationship since the visa grant in July 2015.

4. The delegate was therefore not satisfied that the couple’s relationship was genuine and continuing and accordingly found that cl 801.221(2) of the Regulations was not met.

5. The applicant appeared before the Tribunal on 31 May 2023 to give evidence and present arguments. The applicant was given an opportunity to have a further hearing (at his request) to enable him to provide further evidence.  However, four subsequent scheduled hearings were postponed at the applicant’s request, and he failed to confirm his attendance at these hearings. 

6. Subsequently, the applicant lost his hearing rights because he did not respond to a s 359 (2) letter requesting information evidencing the couple’s relationship by the 17 October 2023 deadline.  Nor did the applicant write to the Tribunal seeking a time extension to respond to the s 359 (2) letter.

7. Consequently, the scheduled hearing of 26 October 2023 was cancelled by the Tribunal.  The applicant was notified in writing of the cancellation on 18 October 2023.  He was further advised that the Tribunal would proceed to make a decision based on the information before it.  The Tribunal also advised the applicant that he could provide further material supporting his claims of a genuine relationship until the Tribunal decision had been made. 

8. The applicant has not provided further material and did not respond to the Tribunal’s correspondence of 18 October 2023.

   Background

9. On 16 March 2014 the applicant married the sponsor, and he had lived in Australia for fourteen years prior to returning to Pakistan.

10. On 10 July 2018 in a telephone interview with the Department of Immigration and Border Protection (the Department), the sponsor claimed that she was no longer in a relationship with the applicant, that she was living with her father and wanted a divorce. She maintained that she had lived separately from him since 2015. 

11. The sponsor did not update her marital status with Centrelink until 7 August 2018.  She had previously maintained that she was single.  As she received a disability pension, her updated marital status impacted this pension.

12. The couple lived with the applicant’s family.  Although the relationship appears to have been inconsistent.  The sponsor provided a statutory declaration on 7 August 2018 detailing that she was living at her father’s home, her relationship with the applicant and that the applicant had moved in with her.

13. The applicant maintains that the couple have lived together since 2017 with her mother and father.

14. The applicant left for Pakistan because his father was ill.  He told the Tribunal that the couple’s relationship had broken down, although they still spoke on the telephone occasionally.  He also confirmed that the sponsor had withdrawn her sponsorship in 2021 and no longer wished to be in a relationship.  

15. The Tribunal agreed to the applicant’s request to provide more evidence at a further hearing.  The Tribunal provided multiple hearing dates and opportunities for the applicant to provide additional material.  However, none of these hearings took place due to postponement requests by the applicant.

16. No further evidence was submitted by the applicant following the May 2023 hearing.  At this May 2023 hearing the applicant admitted that the relationship had in fact broken down and that there was limited contact between the couple.  He also confirmed that they were not living together, but that they were in separate countries and that the sponsor had withdrawn her sponsorship in 2021.

17. The Tribunal advised the applicant at the hearing that as the relationship had broken down and the couple were no longer in a relationship, the review application would be refused. There has been no new or additional evidence provided to contradict this Tribunal view.  Consequently, the Tribunal finds that the couple’s relationship has broken down and that the sponsorship of the applicant has been withdrawn by the sponsor.     

18. The applicant was initially represented in relation to the review.  However, the applicant formally ended the representation in June 2023.

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 is whether the applicant, at the time of decision, is in a genuine marital relationship with the sponsor partner as required by cl 801.221(2) of the Regulations.

21. It is apparent that the sponsor has withdrawn the sponsorship of the applicant and the relationship has broken down.  The applicant and sponsor no longer live together in a genuine and continuing relationship.  According to a statutory declaration provided by the sponsor, the couple have not lived together since 10 July 2018.  In these circumstances, the delegate was not satisfied that the relationship between the applicant and sponsor was genuine and continuing.  Consequently, the delegate determined that cl 801.221(2) was not met. Further, the delegate found that the responses to unfavourable information, did not adequately explain discrepancies in the evidence.  It was concluded that the discrepancies in evidence could indicate that the couple were in fact not living together.  The delegate concluded that they were not satisfied that the relationship was genuine and ongoing.

    Whether the parties are in a spouse or de facto relationship

22. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse 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 related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is no longer the ‘sponsoring partner’ of the applicant, and that the sponsorship of the applicant was withdrawn by the sponsor in 2021.

23. ‘Spouse’ is defined in s 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: s 5F(2)(a) - (d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

24. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and sponsor were married on 16 March 2014.  The Department file contains evidence of their marriage and photographic evidence of their relationship. On the evidence in the Department file, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

25. The Tribunal has considered the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the couple’s commitment. 

26. It is apparent that their relationship has broken down and the sponsorship of the applicant has ceased.

27. The Tribunal finds that the relationship is not ongoing and has ceased.  Consequently, there is no mutual commitment to shared life to the exclusion of others.  The relationship is not a genuine and continuing; and the couple do not live together.  Rather, the applicant and sponsor live separately and apart on a permanent basis in different countries.

    The Tribunal in reviewing the evidence remains unsatisfied that the couple were in a genuine and continuing relationship from 2015.  Further, the disparity of the evidence does not support the conclusion that they were, or continue to be, in a genuine marital relationship.  Rather, the evidence indicates that the relationship was designed to enable the applicant to remain in Australia and seems potentially purely transactional on the sponsor’s part.

    Given these findings the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of this decision. Therefore, the applicant does not meet cl 801.221(2)(c).

28. 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).

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 (Residence) (Class BS) (Subclass 801) visa.

    Donna Petrovich
    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).