Benson (Migration)

[2019] AATA 3818

Benson (Migration) [2019] AATA 3818 (1 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr James David Benson

CASE NUMBER:  1811764

DIBP REFERENCE(S):  CLF2013/266430

MEMBER:Rosa Gagliardi

DATE:1 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence)(Class B) Subclass 801 visa.

Statement made on 01 February 2019 at 2:34pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – relationship ceased – withdrawal by sponsor – no evidence provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), Schedule 2 cls 801.211, 801.221, r 1.15A(3)

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 13 April 2018 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 3 October 2013. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.801.221 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.

3. On 4 December 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the withdrawal of sponsorship by the sponsoring partner.  The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 14 December 2017, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. 

4. The applicant has not provided his comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

5. The issue before the Tribunal is whether the applicant is a spouse, or de facto partner, of the sponsor. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

6. Clause 801.211 and 801.221 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. 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 a married couple 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), which is extracted in the attachment to this decision.

   Are the other requirements for a spousal relationship met?

8. The applicant provided to the Tribunal a copy of the primary decision record.  It indicates the applicant sought the visa on the basis of her relationship with the sponsor but in January 2018 the applicant advised the Department that the relationship had ended.

9. The applicant was placed on notice by the visa refusal that the ongoing nature of the relationship was at issue. The applicant presented no documentary evidence since the visa refusal to show that he continues to be in a relationship with the sponsor.

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 and that there are no children and no relevant court orders or responsibilities in relation to children. On the evidence before it, the Tribunal is not satisfied that the applicant meets any of the requirements in cl. 801.221.

    Conclusion

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

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Partner (Residence)(Class B) Subclass 801 visa.

    Rosa Gagliardi
    Member