Abhinav Misra (Migration)

[2018] AATA 181

Abhinav Misra (Migration) [2018] AATA 181 (6 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Abhinav Misra

CASE NUMBER:  1611354

DIBP REFERENCE(S):  CLF2014/114903

MEMBER:Kira Raif

DATE:6 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 06 February 2018 at 4:13pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Relationship ended – No evidence of mutual commitment

LEGISLATION
Migration Act 1958, ss 5F, 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994, r 1.15A, Schedule 2 cl 801.221

CASES
Hasran v MIAC [2010] FCAFC 40

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 11 July 2016 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 India born in February 1986. The applicant applied for the visa on 19 August 2014 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the applicant’s relationship with the sponsor ended and the delegate was not satisfied the applicant met any of the alternative criteria for visa grant. The applicant seeks review of the delegate’s decision.

3. On 28 November 2017 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 12 December 2017, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4. The applicant has not provided the comments within the prescribed period. On 15 December 2017 the Tribunal received communication from the applicant seeking more time to provide his comments but since this request was received after the prescribed period, the Tribunal was unable to grant an extension of time. In these circumstances, s.359C applies and pursuant to s.360(3) the 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.

5. The Tribunal informed the Tribunal that although he had lost his entitlement to the hearing, the Tribunal would not proceed to the decision for some time to enable the applicant to provide further evidence. At the time of this decision, the applicant has not provided any further submissions to the Tribunal.

   Relevant law

6. At the time the application was made, 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 (the Regulations).

7. 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.

8. ‘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 r.1.15A(3).

   Are the requirements for a spousal relationship met?

9. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant sought the visa on the basis of his relationship with the sponsor and was granted the temporary visa in May 2015. However, in February 2016 the sponsor informed the Department that the relationship ended and that she wished to withdraw the sponsorship. The applicant was invited to comment on that information but did not respond. As noted above, he did not respond to the Tribunal’s s. 359A correspondence which referred to the withdrawal of the sponsorship.

10. There is no evidence that at present, the applicant and the sponsor continue to live together or not apart on a permanent basis or that they maintain a joint household or share housework. There is no evidence that they share their finances, have joint liabilities or jointly contribute to expenses. There is no evidence that the applicant and the sponsor continue to represent themselves to others as being in a relationship or that they socialise together. There is no evidence that there continues to be a mutual commitment to the relationship or that the parties draw companionship and support from each other.

11. The Tribunal is not satisfied that at the time of this decision, the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied that at the time of this decision, the applicant is the spouse or the de facto partner of the sponsor.

12. There is no evidence before the Tribunal that the sponsor has died. There is no evidence in relation to any family violence and that there are no children and no relevant court orders or responsibilities in relation to children. On the evidence before it, the Tribunal is not satisfied that the applicant meets the requirements in cl. 801.221.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member