Agomuo (Migration)

[2021] AATA 5652

Agomuo (Migration) [2021] AATA 5652 (12 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anthony Chukwuemeka Agomuo

CASE NUMBER:  2013658

DIBP REFERENCE(S):  BCC2018/5349957

MEMBER:SM Justin Owen

DATE:12 October 2021

PLACE OF DECISION:  Sydney

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

Statement made on 12 October 2021 at 9:49am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – relationship ceased – Australian citizen son – active role in the care and support of son – serious, ongoing and irreversible harm and continuing hardship – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 360
Migration Regulations 1994 (Cth), Schedule 2, cls 820.211, 820.221

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 20 August 2020 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 applied for the visa on 29 November 2018 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221 because the applicant was not, at the time of decision, the spouse (as defined under section 5F of the Act) or the de facto partner (as defined under section 5CB of the Act) of the sponsoring partner. The decision record supplied by the applicant to the Tribunal indicates that on 5 March 2020, the applicant submitted a notification of changes to the delegate stating the relationship between himself and the sponsor had ended. On 20 July 2020 the applicant was provided 28 days to comment on the adverse information received by the department in relation to the change in his relationship status and to provide any additional information to support the grant of the visa despite the relationship breakdown. On 15 August 2020 the department received the applicant’s response that stated his relationship with the sponsor had ended, he did not wish to withdraw his Partner application, and he acknowledged the department would refuse his Partner visa application. The applicant’s Partner visa application was subsequently refused on the basis he was not, at the time of decision, the spouse or de facto partner of the sponsor. The delegate also found that the applicant did not meet or claim any of the exceptions of subclauses 820.221 (1), (2) or (3). Relevantly to this matter the primary criteria include cl.820.221 of Schedule 2 to the Regulations.

3. The Tribunal received from the applicant a valid application for review on 7 September 2020. 

4. On 19 July 2021 the Tribunal wrote to the applicant through his representative inviting him to provide information to the Tribunal.  The Tribunal noted that if the applicant was no longer in a relationship with his sponsoring partner, there were exceptions under which he could still be granted a Partner visa.  These included the death of the sponsor; family violence; and certain Court orders or responsibilities in relation to children.  The applicant was invited to provide information that he believed may be relevant to these exceptions by 2 August 2021.

5. On 1 August 2021 the applicant responded to the Tribunal through his representative.  The applicant confirmed that he was no longer in a relationship with his sponsoring partner.  He advised that his personal circumstances are not within any of the ‘exceptions’ under which he could be granted a Partner visa. The applicant’s representative wrote “It is conceded that Mr Agomuo does not satisfy the requirements to be eligible for the Partner visa applied for”.    

6. The applicant’s representative wrote that the purpose of the application to the Tribunal was to obtain a decision to enable the applicant to seek Ministerial Intervention.  He stated the primary basis for the request was the applicant’s Australian citizen son, who is not the child of the sponsor within his Partner visa application before the Tribunal. 

7. The applicant sought referral of his case by the Tribunal to the Department under s.351. 

8. The applicant consented to the Tribunal deciding the review application without the applicant appearing before the Tribunal at a hearing. 

9. The applicant sought a grant of time to provide further submissions and information to the Tribunal, in order to request the Tribunal to refer the matter for Ministerial Intervention.  The Tribunal agreed, giving the applicant until 27 September 2021.  Submissions were made to the Tribunal by this date. 

10. The Tribunal notes that the applicant has indicated that he has provided consent to the Tribunal to finalise the case without a hearing.  The Tribunal is satisfied that the necessary consent has been given under s.360(2) of the Act and that, pursuant to s.360(3), the applicant is no longer entitled to appear before it.  This matter has therefore been determined on the evidence available to the Tribunal.

11. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant and his sponsor are currently in a spousal relationship; and if not whether the applicant satisfies the alternate criteria (child of the relationship; death of sponsor or victim of family violence) to be granted a visa (cl.820.221). 

14. The applicant has confirmed to both the delegate and the Tribunal that the relationship with the sponsor has ended. 

15. The applicant has made no claims to any of the exceptions: death of the sponsor; family violence; and certain Court orders or responsibilities in relation to children.  The Tribunal notes that in his correspondence of 1 August 2021, the applicant advised, through his representative, that his personal circumstances are not within any of the exceptions under which he can be granted a Partner visa.  The applicant’s representative wrote “It is conceded that Mr Agomuo does not satisfy the requirements to be eligible for the Partner visa applied for”.  The applicant’s representative again conceded in his submissions of 27 September 2021 that the applicant does not satisfy the requirements to be eligible for the Partner visa he applied for.    

16. Given the applicant’s evidence, the Tribunal is satisfied that at the time of decision, the applicant does not continue to be sponsored for the grant of the Subclass 820 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa. Accordingly, at the time of decision the applicant does not continue to satisfy the criteria in cl.820.211(2): cl.820.221(1).

17. Further, based on all the evidence, the Tribunal finds that clauses 820.221(2) and 820.221(3) are not applicable in this case.

18. Accordingly, given all the above, the applicant does not meet cl.820.221.

19. In the correspondence received from the applicant’s representative on 1 August 2021 and 27 September 2021, the matter of Ministerial Intervention in this particular case was raised. The Tribunal may refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. 

20. The applicant’s representative provided a wide range of information to the Tribunal pertaining to the applicant’s Australian citizen son, Master Thomas Paivinen.  These included:

    ·26 September 2021 correspondence of the applicant outlining his case for Ministerial Intervention. 

    ·The NSW Birth Certificate of Master Thomas Paivinen.  Master Paivinen is almost two years of age at the time of decision. 

    • The results of paternity tests carried out by DNA Solutions.  On 23 June 2020 and 30 June 2020 DNA Solutions carried out paternity tests with samples collected from the applicant and the applicant’s son.   The testing showed the applicant was 567,584,800 times more likely to produce a child with the required alleles than a man drawn randomly from the African population.  This equates to a Relative Chance of Paternity of 99.9999998%. 

    ·Interim Consent Orders made by the Federal Circuit Court dated 14 April 2021 granting both the applicant and Master Paivinen’s mother shared parental responsibility.

    ·Correspondence from Services Australia to the applicant confirming his Child Support arrangements for Master Paivinen of $846.92 per month for the period July to November 2022. For the 2021/22 financial year he is paying $73.82 per week.   

    ·Various photographs of the applicant and Master Paivinen.

21. On the basis of the DNA evidence, the Tribunal accepts that the applicant is the father of Master Thomas Paivinen.

22. The Tribunal notes that the evidence suggests the applicant is playing an active role in his son’s upbringing.  He is providing for his son through the child support payments through Services Australia.  Interim Court orders have confirmed equal parental responsibility with Master Paivinen spending time both with his mother and the applicant.  Master Paivinen is to live with his mother.

23. The applicant has requested the Tribunal support their request for Ministerial Intervention pursuant to s.351 of the Act.  The applicant asserts that there are ‘unique or exceptional circumstances’ in relation to the applicant and his son.  The applicant states his circumstances are relevant as per the guideline:  strong, compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or permanent resident.

24. The applicant has asserted the needs of Master Paivinen, as an Australian citizen child, are compassionate circumstances which both justify Ministerial Intervention and presumably satisfy the public interest requirement.   

25. The applicant states that Master Paivinen needs the presence, involvement and support of his father.  The applicant states that if these needs were not recognised, this would result in serious, ongoing and irreversible harm and continuing hardship to Master Paivinen.  The best interests of the child have been essentially held as a reason for the Tribunal to refer the case for Ministerial Intervention.

26. The Tribunal has carefully considered the applicant’s circumstances, and the claims that have been made in relation to his son, Master Paivinen.  The Tribunal notes that Final Orders will be made in relation to his future care next year.  Nevertheless, the Tribunal notes the evidence before it suggests the applicant is playing an active role in the care and support of his son.

27. On balance, the Tribunal considers on the evidence there are compassionate circumstances regarding the applicant’s young son, that if not recognised would result in serious, ongoing, and irreversible harm and continuing hardship. 

28. Having regard to the applicant’s circumstances, and having considered the Ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3), the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.   

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

    decision

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

    Justin Owen
    Senior Member