Adhikari (Migration)

[2017] AATA 2291

Adhikari (Migration) [2017] AATA 2291 (13 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sumek Adhikari

CASE NUMBER:  1604571

DIBP REFERENCE(S):  CLF2013/92798

MEMBER:Kira Raif

DATE:13 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 November 2017 at 10:32am

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Relationship with sponsor ended – No valid spousal relationship at time of decision

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulations 1994, r 1.15A, Schedule 2, cl 801.221

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 30 March 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 Nepal born in March 1983. He applied for the visa on 18 April 2013 on the basis of his relationship with his sponsor. The applicant was granted the temporary Partner visa in May 2013. The delegate refused to grant the permanent visa on the basis that the applicant did not satisfy cl.801.221 because the sponsor informed the Department that the relationship had ended. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 13 November 2017 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 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.

5. ‘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 husband and wife 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?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was sponsored in his visa application by Ms Morgan. In January 2016 the sponsor informed the Department that the relationship had broken down and that the couple were separated. In response to a letter from the delegate, the applicant stated that they were trying to reconcile and that the sponsor was still supportive of the relationship but the applicant failed to provide any evidence of the relationship being ongoing.

7. The applicant confirmed to the Tribunal in oral evidence that he and the sponsoring partner had separated in 2016 and he is now in a different relationship. The Tribunal finds on the basis of the applicant’s own evidence, that at the time of this decision the applicant is no longer the spouse of the sponsor. There is no evidence, and the applicant does not claim, that the sponsoring partner has died or that there has been family violence or that there are any children or responsibilities towards any children. The Tribunal is not satisfied that at the time of this decision, the applicant meets any of the requirements in cl. 801.221.

8. The applicant told the Tribunal that he and the sponsor had been in a relationship for five years and has lived in Australia for a long time and has started a course and it would be hard for him to return to his home country. That may be the case but as the Tribunal explained to the applicant in the course of the hearing, he is not able to obtain the Partner visa merely on the basis of his past residence in Australia.

9. The Tribunal is not satisfied the applicant meets cl. 801.221.

   Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member