Bari (Migration)

[2018] AATA 588

Bari (Migration) [2018] AATA 588 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kazi Md Ziaul Bari

CASE NUMBER:  1702952

DIBP REFERENCE(S):  BCC2016/514607

MEMBER:Kira Raif

DATE:6 March 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 06 March 2018 at 3:08pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – No reason for non-appearance at rescheduled hearing – De facto relationship – Sponsoring partner has withdrawn sponsorship – No evidence of a continuing relationship 

LEGISLATION
Migration Act 1958, ss 5CB, 65
Migration Regulations 1994 r 1.09A(3) 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 of a delegate of the Minister for Immigration on 31 January 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Bangladesh, born in December 1983. The applicant applied for the visa on 3 February 2016 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.820.221 because the applicant’s relationship with the sponsor ended and the delegate was not satisfied the applicant met any of the alternative criteria for the grant of the visa. The applicant seeks review of the delegate’s decision.

3. The Tribunal wrote to the applicant on 30 November 2017 pursuant to s. 359A of the Act inviting his comments or response to adverse information. The applicant informed the Tribunal that he required a 14 days’ extension to provide a response. That extension was granted. At the end of the period the applicant again sought an extension of time, stating that he needed a further 14 days to provide his response. No explanation has been offered by the applicant why the 14 days he initially requested was insufficient (the applicant referred to the festive season of which he would have been well aware when he first sought an extension of time of 14 days to respond) and neither did the applicant offer any explanation as to what steps he had taken since the initial letter of 30 November 2017 to formulate his response. The applicant indicated in his correspondence of 28 December 2017 that he needed a further 14 days to reply. However, the applicant failed to provide any substantive reply within that time and to date. In his letter to the Tribunal of 2 February 2018 the applicant simply states that he is entitled to a hearing. The applicant does nothing to explain his failure to provide a substantive response to the Tribunal’s correspondence of 30 November 2017, despite his indication on two separate occasions that he needed 14 days to formulate such a response. The applicant also fails to identify what steps he has taken to obtain whatever evidence or information he wished to present to the Tribunal or why such evidence was not available to him since 30 November 2017 or since December 2016 when the delegate first invited the applicant to comment on the same adverse information. The Tribunal has found the applicant’s dealings with the Tribunal to have been unhelpful. The applicant was represented by Mr Li of LMP Immigration.

4. The Tribunal invited the applicant to attend the hearing on 27 February 2018. At the close of business hours on 26 February 2018 the applicant contacted the Tribunal stating that he has “just received” notice about the hearing (his representative advised that the hearing invitation was forwarded to the applicant as soon as it was received, several weeks prior to the scheduled hearing) and that he was unable to attend due to his medical condition. The Tribunal notes that the medical report presented to the applicant refers to the applicant being unfit for work and states nothing about his inability to participate in the hearing or to give evidence. In such circumstances, the Tribunal informed the applicant and his representative that the hearing would proceed as scheduled. The applicant did not appear before the Tribunal on 27 February 2018.  

5. As the applicant did not appear at the scheduled hearing, the Tribunal invited the applicant to attend another hearing on 6 March. The applicant again did not appear and no explanation has been offered for his non-appearance.

   Relevant law

6. Clause 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

7. As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

8. In forming an opinion whether they are in a de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3).

   Is the applicant the spouse of the sponsor?

9. The applicant sought the visa on the basis of being in a de facto relationship with the sponsor. Information on the Department’s file indicates that the applicant’s relationship with the sponsor ended and that the sponsoring partner had withdrawn 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 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 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. 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.

13. On the evidence before it, the Tribunal is not satisfied that the applicant meets the requirements in cl. 820.221.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member