1501720 (Migration)

[2016] AATA 3586

1501720 (Migration) [2016] AATA 3586 (23 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Johnattan Luc Guy Maurice Tisserand

CASE NUMBER:  1501720

DIBP REFERENCE(S):  CLF2012/248014

MEMBER:Alan Duri

DATE:23 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 23 March 2016 at 10:55am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mr Tisserand was born in 1984 in France.  He has visited Australia at various times since 2007.

2. On 14 December 2012 Mr Tisserand applied for a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act) on the basis that he was in a de facto relationship with Ms Verity Newlove, an Australian citizen.

3. Ms Newlove was born in 1983 in Australia.

4. On 2 May 2013 the department granted Mr Tisserand a Subclass 820 provisional partner visa.

5. On 28 July 2014 Ms Newlove advised the department that the relationship has broken down.

6. On 20 January 2015 the delegate refused to grant the visa on the basis that Mr Tisserand did not satisfy cl.801.221 of Schedule 2 to the Migration Regulations 1994.

   Hearing

7. Mr Tisserand appeared before the tribunal on 23 March 2016 to give evidence and present arguments.

8. Mr Tisserand confirmed that he is no longer in a relationship with Ms Newlove.  He indicated that there are no children from the relationship.  Ms Newlove is still alive.  Mr Tisserand stated that he is not the victim of family violence.

9. Mr Tisserand said that at the time of the visa application he had been in a long term relationship and noted that he could have been granted a permanent visa at the same time as he was granted a provisional visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Clause 801.221(1) of Schedule 2 to the Regulations provides that one of a number of alternate criteria needs to be satisfied at the time of decision, which in this case is the tribunal’s decision. Cl.801.221(2) provides:

    (2)        An applicant meets the requirements of this subclause if:

    (a)        the applicant is the holder of a Subclass 820 visa; and
    (b)        the applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by:

    (i)         the sponsoring partner; or

    (ii)        the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

    (c)        the applicant is the spouse or de facto partner of the sponsoring partner; and

    (d)subject to subclauses (6A) and (7), at least 2 years have passed since the application was made.

11. As noted above, Ms Newlove withdrew her sponsorship.

12. Mr Tisserand gave evidence confirming that he is no longer in a relationship with Ms Newlove.

13. Therefore cl.801.221(2) is not met because at the time of decision Mr Tisserand is no longer the de facto partner of Ms Newlove.

14. There is no evidence that the exceptions in cl.801.221(5) or (6) apply.

15. Mr Tisserand requests relief because of his claim that he had been in a three year (and therefore “long term” relationship) with Ms Newlove at the time of the visa application. Clause 801.221(6A) provides that the two year wait following the visa application in cl.801.221(2(d) does not apply to an applicant who at the time of making the application was in a long-term partner relationship with the sponsoring partner.

16. It is theoretically possible (providing the department would have accepted the claim of a long term relationship) that Mr Tisserand could have been granted a Subclass 801 visa at the time of the original decision to grant the provisional visa. However the department made no decision on the Subclass 801 visa until January 2015. The fact remains that as at the time of this decision Mr Tisserand no longer meets the requirements of cl.801.221(2).

17. For the reasons given above, the tribunal finds that Mr Tisserand does not satisfy the requirements of cl.801.221.

    DECISION

18. The tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Alan Duri
    Member