Bania (Migration)

[2017] AATA 849

Bania (Migration) [2017] AATA 849 (9 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bangish Bania

CASE NUMBER:  1614817

DIBP REFERENCE(S):  BCC2014/2391756

MEMBER:Nicholas McGowan

DATE:Tuesday May 9, 2017

PLACE OF DECISION:  Sydney

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



Statement made on 09 May 2017 at 12:12pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Genuine spousal relationship – Relationship with the sponsor had ceased – No compelling circumstances to waive the Schedule 3 requirements – Not biological father of the sponsor’s child

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 3, cl 820.211

REVIEW

1. The applicant applied for the temporary partner visa on 18 September 2014.

2. The Minister’s delegate refused to grant the visa on 31 August 2016.

3. The applicant appealed that refusal to this Tribunal on 14 September 2014 and provided the Tribunal with a copy of the department’s refusal decision.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.211(1), and he had not met cl.820.211(2), or any of the alternate subclauses.  The delegate was not satisfied that the parties were in a genuine spousal relationship.  Further, the delegate was not satisfied there were compelling circumstances to waive the Schedule 3 requirements.

5. As contained in the delegate’s decision (provided to the Tribunal by the applicant), the applicant’s migration agent had advised the Department that the applicant’s relationship with his sponsor had ceased in December 2015.

6. On 24 November 2016 the Tribunal invited the applicant to a hearing on 23 January 2017, as the evidence he had submitted (at that time) was not sufficient (in the Tribunal’s assessment) to permit a favourable decision (‘on the papers’).

7. The applicant appeared before the Tribunal on the scheduled date. A submission was provided by the applicant’s agent dated 17 January 2017. The applicant appeared alone at the hearing.

8. At the hearing the applicant confirmed to the Tribunal that his relationship with his sponsor had ended. As the time of application criteria in clause 820.211(2) must continue to be met at time of decision under clause 820.221(1)(a), it follows that clause 820.221(1)(a) is not met.

9. Relevantly in this case, at the time of decision, to be granted a Subclass 820 visa, the applicant must continue to be sponsored by his sponsoring partner (expect where exceptions apply).

   Would the applicant continue to meet the requirements expect that the sponsor has died?

10. All the evidence before the Tribunal is that that the sponsor has not died. Therefore, the applicant does not met clause 820.221(2).

    Has the applicant or dependent child, or both, suffered domestic violence by the sponsor?

11. As the applicant has advised the Tribunal there is no claim of suffering domestic violence by the sponsoring partner, the applicant does not meet clause 820.221(3)(a) and (b)(i).

    Is there a child of the applicant’s relationship with the sponsor?

12. The biological parentage of the child (the sponsor’s daughter) is not in dispute, as the applicant does not claim he is the child’s biological father, or has any orders in relation to the child.

13. Notwithstanding the above, during the hearing the Tribunal clarified with the applicant whether he sought to make any claim in relation to the sponsor’s child. It did this because of the submission received by the Tribunal (on the applicant’s behalf (folios 39-40)), which spoke to this aspect. The applicant made it clear to the Tribunal that he had not seen the child, or his sponsor, since December 2015, and stated that he has had no contact with them since that time. The applicant made it clear to the Tribunal that he made no claim in regards to the sponsor’s child: cl. 820.221(3)(b)(ii).

14. The applicant explained that he is undertaking a university course, and would like to stay in Australia until May 2017 to enable him to finalise his exams and complete his degree. The Tribunal explained that it would make a quick and economical decision.

15. At the conclusion of the hearing the Tribunal explained to the applicant his appeal rights, should the decision by the Tribunal not be a favourable one. It also explained what would occur, should the Tribunal be able to make a favourable decision.

16. Relevantly, the Tribunal made it clear to the applicant that on the evidence presented by him (at the hearing), and from all the evidence present on the files, the Tribunal would be unable to make a favourable decision. The applicant acknowledged.

    FINDINGS

17. Given all the above, the Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa, and to whom any of the  exceptions apply.

18. Therefore, at the time of decision the applicant does not continue to satisfy the criteria in cl.820.211(2): cl.820.221(1).

19. Accordingly, the applicant cannot satisfy the criteria in cl.820.221.

20. For the reasons given, the applicant does not satisfy the criteria for the grant of the visa.

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