1600560 (Migration)

[2016] AATA 4761

1600560 (Migration) [2016] AATA 4761 (28 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrew Paul Cheshire

CASE NUMBER:  1600560

DIBP REFERENCE(S):  BCC2014/2849873 CLF2016/6158

MEMBER:Kira Raif

DATE:28 November 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221 of Schedule 2 to the Regulations.

Statement made on 28 November 2016 at 1:44pm

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 Immigration on 16 December 2015 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of UK, born in May 1981. He applied for the visa on 24 October 2014 on the basis of his relationship with his sponsor. The applicant was granted the temporary Partner visa in July 2015 but his application for the permanent visa was refused because the applicant’s relationship with the sponsor had ended and the delegate found the applicant did not meet cl. 801.221. The applicant seeks review of the delegate’s decision.

3. No hearing was held in this case as the Tribunal was able to make a favourable decision on the materials before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner 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 Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the de facto partner of the sponsor who was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

5. ‘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).

6. 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).

   Is the applicant the de facto partner of the sponsor?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant’s relationship with the sponsor had ended.

8. The Tribunal is not satisfied that at the time of this decision, the applicant and the sponsor have joint ownership of assets, joint liabilities or that pool financial resources, have any legal obligations owed to the other party or share day-to-day household expenses. The Tribunal is not satisfied that they live together and have established a joint household or that they share housework. The Tribunal is not satisfied that the parties continue to represent themselves to other people as being in a marital relationship with each other. The Tribunal is not satisfied that at the time of this decision, friends and acquaintances believe the parties to be in a genuine relationship. The Tribunal is not satisfied that they plan and undertake joint social activities. The Tribunal is not satisfied that the parties continue to live together or that they draw companionship and emotional support from each other. The Tribunal is not satisfied they see the relationship as long-term. The Tribunal is not satisfied that there continues to be mutual commitment to this relationship. The Tribunal finds that the relationship between the applicant and the sponsor has ceased. Therefore, the applicant does not meet cl.801.221(2)(c).

9. The applicant provided to the Tribunal a copy of a birth certificate indicating a child was born in 2016 where the applicant is identified as a father and the sponsor as the mother of the child. The Federal Court held in Srour v MIMIA (2006) 155 FCR 441 at [57], in relation to the child exception, that a visa applicant can have a right to custody as an incident of the statutory imposition of parental responsibility by operation of the Family Law Act1975 in relation to a biological child and the sponsoring partner can have a formal maintenance obligation by operation of the Child Support (Assessment) Act 1989. There is no evidence before the Tribunal to indicate that a court order has been issued to contradict these obligations. As there is a biological child of the applicant and the sponsor, the Tribunal finds that the applicant meets cl. 801.221(6) and cl. 801.221. In reaching this conclusion, the Tribunal acknowledges the evidence before it that the applicant has had very little, or no, contact with the child.

   Conclusion

10. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.

    DECISION

11. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member