Adobor (Migration)

[2018] AATA 1558

Adobor (Migration) [2018] AATA 1558 (24 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Oscar Kofi Adobor

CASE NUMBER:  1700701

DIBP REFERENCE(S):  BCC2014/2269196

MEMBER:Moira Brophy

DATE:24 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 May 2018 at 12:40pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Sponsorship withdrawal – Tribunal received information in accordance with s359AA – Parties do not live together – No longer represent themselves as being in a relationship – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65, 359AA
Migration Regulations 1994, rr 1.20J, 1.20KA, 1.20KB, 1.20KC Schedule 2 cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the applicant is able to meet the sponsorship requirements for the grant of a visa. To meet these requirements the visa applicant must be in a spousal relationship with the sponsor both at the time of application and at the time of decision.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision of a delegate of the Minister for Immigration on 4 January 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

3. The applicant applied for the visa on 8 September 2014 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2)(a) because she was not satisfied the sponsor was the spouse of the visa applicant as defined in section 5F or 5CB of the Migration Act.

5. The applicant appeared before the Tribunal on 7 May 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The representative did not attend the Tribunal hearing.

6. On 8 May 2018 the Tribunal received a request from the applicant for a copy of the letters written by the former sponsor of the applicant withdrawing her sponsorship.

7. On 9 May 2018 the Tribunal provided a copy of the requested documentation to the applicant and advised any further submissions were to be with the Tribunal on or before 16 May 2018 after which time the Tribunal would proceed to make a decision.

8. A request for additional time was made by the applicant and the Tribunal extended time to 23 May 2018.

9. Additional submissions were provided by the applicant on 16 May 2018 and 23 May 2018 including but not limited to:

   ·A report dated 21 May 2018 from Mr Navin Goonniah, Registered Psychologist from Mind Over Matters Psychological Services;

   ·A copy of beneficiary details held by BT Financial Group for the applicant’s Super for Life Savings account;

   ·A submission from the applicant dated 16 May 2018 clarifying the situation between his former sponsor and himself;

   ·A further submission from the applicant dated 22 May 2018 setting out the adverse effects on him of his time in immigration detention and the breakup of his relationship.

10. Those submissions, where relevant to the issue before the Tribunal, have been taken into account

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    Background

12. The applicant is a 35-year-old male from Ghana. He was previously in a relationship with Mozda Patience in the period from 22 December 2007 to 27 August 2011. There was a son of the relationship born on 30 June 2009. The son of the applicant resides in Ghana. His father is deceased and his mother, one brother and two sisters reside in Ghana. He has one brother, two stepbrothers and one stepsister residing in Australia.

13. He arrived in Australia on 22 July 2012 on a student visa (Subclass 572) which was valid until 15 September 2014. The applicant applied for the partner visa which is the subject of this review on 8 September 2014. He was granted a subsequent to that application.

14. The applicant was arrested on 3 November 2017 and charged with a criminal offence arising from an incident which took place on 2 September 2017. He was placed in the Remand Centre at Silverwater. On 14 December 2017 he was granted conditional bail. On 6 February 2018 on providing the required surety he was released from the Remand Centre. However as the delegate had cancelled the applicant’s bridging visa on 2 February 2018 he was taken into immigration detention at Villawood Immigration Detention Centre. The applicant sought a review of the decision to cancel his bridging visa and the decision was affirmed by the Administrative Appeals Tribunal (differently constituted) on 20 March 2018.

15. The sponsor is an Australian citizen by grant having come to Australia on 18 October 2002. She was born on 23 November 1988 and is currently 29 years old. She has declared no previous relationships.

16. On their application form the parties claim to have first met at Granville on 22 June 2013, they committed to a shared life to the exclusion of all others on 31 December 2013 and they were married on 26 July 2014. A copy of their marriage certificate in in the Department's file.

17. The delegate was not satisfied that the parties were in a genuine, ongoing and exclusive relationship as required by the Migration Act.

18. At the time of hearing the Tribunal made two attempts to contact the sponsor on the mobile number provided by the applicant but the calls were not answered. They were diverted to voicemail.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Is the applicant sponsored?

19. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(a) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

20. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved.

21. Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in r.1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and r.1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

    Is the visa applicant in a spousal relationship with the sponsor?

22. The applicant sought the visa on the basis of his relationship with the sponsor. Information on the Department's file and the Tribunal’s file indicates that the applicant's relationship with the sponsoring partner had ended and that the sponsorship had been withdrawn. The Tribunal put this information to the applicant pursuant to s 359AA of the Act seeking his comments on that information. In response, the applicant confirmed that he was no longer in a relationship with the sponsor but stated he had not been aware she had withdrawn sponsorship until he attended the Tribunal for the hearing of another application. He told the Tribunal he had not seen the sponsor since October 2017 when she left Australia to travel to Ghana. He said she had only returned to Australia a few days ago. He said that he was not aware of any divorce proceedings having been initiated.

23. The applicant said he was upset that he had not been told the sponsor had made a decision to withdraw her sponsorship of his application. He said he had only ever stayed in Australia because she had wanted him to stay and be with her. In later submissions he stated the decision to leave the relationship was a decision she made and was not a decision he supported.

24. In the interests of procedural fairness and in accordance with s359AA of the Act the Tribunal put to the visa applicant the contents of a letter received on 22 May 2017 from a concerned member of the public. The information provided stated that the applicant and the sponsor were not in a genuine relationship and that they did not live together.

25. The Tribunal also put to the visa applicant the information received on 1 June 2017 from a concerned member of the public that the relationship ended in October 2016, that the parties do not live together, the sponsor lives on her own, the visa applicant has refused to release her from the ‘real estate form’ and the visa applicant has refused to sign divorce papers.

26. The applicant disputed the veracity of the information received. He said he had no idea who the unnamed sources were or what their relationship was to his former sponsor. He said he had provided information by way of the residential tenancy agreement entered into on 15 October 2016 which was indicative of him and the sponsor residing together for the period from15 October 2016 to October 2017. He also took the Tribunal to photographs of the applicant and sponsor together at their home undertaking chores which although undated were according to the applicant taken in December 2016. The Tribunal was mindful that the sponsor had notified the department that she was withdrawing her sponsorship on 21 February 2017 and in that communication she indicated she had moved out and changed her address.

27. In his oral evidence the applicant confirmed that his relationship with the sponsor has broken down.

28. On the evidence before it the Tribunal makes the following findings.

29. 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.

30. The Tribunal is not satisfied on the limited evidence before it 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 of the sponsor.

31. There is no evidence before the Tribunal that the sponsor has died. There is no evidence in relation to any family violence. The applicant told the Tribunal that during the period of the relationship breakdown, his former partner withdrew all the funds from their joint account.

32. There is no evidence that the applicant has a biological child with the sponsor or that there are relevant court orders or responsibilities in relation to a child in respect of whom the sponsoring partner also has the relevant court orders or responsibilities under the Family Law Act 1975. The Tribunal is not satisfied the applicant meets the exceptions in cl. 820.221(3).

33. Accordingly, on the evidence before it, the Tribunal is not satisfied that the applicant meets the requirements in cl. 820.221.

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

    DECISION

35. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Moira Brophy
    Member