Black (Migration)

[2018] AATA 2646

Black (Migration) [2018] AATA 2646 (13 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John Wilson Black

CASE NUMBER:  1729397

DIBP REFERENCE(S):  BCC2015/2598660

MEMBER:Justin Owen

DATE:13 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 June 2018 at 9:44am

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801(Partner) – Sponsorship withdrawn – Comments not provided within the prescribed period – Decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5CB, 5F, 65, 359, 359A

Migration Regulations 1994 (Cth), Schedule 2 cls 801.211, 801.221

REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 8 November 2017 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 4 September 2015 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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. Relevantly to this matter the primary criteria include cl.801.221 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 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.

4. The Tribunal received from the applicant a valid application for review on 23 November 2017. 

5. The Tribunal has before it the Department’s file relating to the applicant and its own file.  The applicant provided no other additional evidence, or made any new claim, to the Tribunal in association with any of the criteria under consideration as part of this review. 

6. On 26 April 2018 the Tribunal wrote to the applicant pursuant to sections 359A and 359(2) of the Act inviting him to comment on or respond to information by 10 May 2018.

7. On 9 May 2018 the Tribunal received a response from the applicant seeking further time to provide the information. 

8. On 10 May 2018 the Tribunal agreed with the applicant’s request and extended the time to respond to the Tribunal’s invitation to 24 May 2018.

9. The Tribunal is satisfied that the applicant was sent an invitation to comment on information under section 359A and 359(2) of the Act. The invitation, dated 26 April 2018, was sent to the last address for service provided by the applicant in connection with his application for review. The Tribunal is satisfied that its agreement to the applicant’s request to extend the time to respond to the Tribunal’s invitation was sent to the last address for service provided by the applicant in connection with his application for review.

10. Where an applicant is invited to comment on or respond to information under section 359A and 359(2) and fails to provide those comments within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information (subsection 359C(1) and (2)). In these circumstances, the applicant is not entitled to appear before the Tribunal (subsection 360(3) and section 363A).

11. The Tribunal has found that the applicant did not provide comments within the prescribed period.  The Tribunal agreed with the applicant’s request for an extension of time.  The Tribunal has waited a further twenty days beyond the original extension of time granted to respond without any response from the applicant.  The Tribunal has decided in this case to now proceed to make a decision on the review without taking further action to obtain comments from the applicant and without inviting the applicant to appear before the Tribunal. 

12. Given the evidence in the Departmental file that the applicant is no longer the spouse of the sponsor, as put to the applicant under s359A by the Tribunal in its correspondence of 26 April 2018, and given the applicant failed to provide evidence that he continues to be the spouse or de facto partner of the sponsoring partner, and given the applicant has not provided any evidence or alternative claim, the Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the subclass 801 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for the visa.

13. Clause 801.221 subclause (1) of the Regulations requires that the applicant must, at the time of decision, satisfy subclause (2), (2A), (3), (4), (5), (6) or (8) of clause 801.221. Relevantly in this case, 801.221 subclause (2) requires that the applicant remains the spouse (as defined under section 5F of the Act), or de facto partner (as defined by section 5CB of the Act) of their sponsoring partner at that time. As information on the Departmental file indicates that your relationship with the sponsoring partner has ended, the applicant in this case no longer continues to be sponsored for the grant of the visa by his sponsoring partner, and the applicant has not provided any evidence that he satisfies cl.801.221(2)(b).

14. The applicant may satisfy clause 801.221 by meeting the requirements of at least one of the subclauses (3), (4) (5) and (6).  These prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residence where the relationship with the sponsorship has ceased.  These include the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children.  The Tribunal invited the applicant to provide information he believed may be relevant to these exceptions.  No claim has been made by the applicant in relation to the exceptions. 

15. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria in cl.801.211 (3)-(6). 

16. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria cl.801.211 (2A) and (8) which rely on specific procedural scenarios that do not apply in this case.  

    FINDINGS     

17. The Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the subclass 801 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa.

18. Accordingly, for the reasons above, the applicant cannot satisfy the criteria in cl.801.221 (1). 

    DECISION

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

    Justin Owen
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

    Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)any joint ownership of real estate or other major assets; and

    (ii)any joint liabilities; and

    (iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)any joint responsibility for the care and support of children; and

    (ii)the living arrangements of the persons; and

    (iii)any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)whether the persons represent themselves to other people as being in a de facto relationship with each other; and

    (ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)the duration of the relationship; and

    (ii)the length of time during which the persons have lived together; and

    (iii)the degree of companionship and emotional support that the persons draw from each other; and

    (iv)whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).