Blanco Quintero (Migration)

[2019] AATA 739

Blanco Quintero (Migration) [2019] AATA 739 (3 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Desiree Del Valle Blanco Quintero

CASE NUMBER:  1807252

DIBP REFERENCE:  BCC2016/1400780

MEMBER:Rosa Gagliardi

DATE:3 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 January 2019 at 2:50pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – relationship ceased – no evidence of family violence – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65, 359, 360, 363

Migration Regulations 1994, r 1.09

CASES

Hasran v MIAC [2010] FCAFC 40

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 1 March 2018 to refuse to grant the visa applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 April 2016. The delegate refused to grant the visa on the basis that the visa 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.

3. On 6 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 20 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 she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4. The applicant has not provided her 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 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).

   Are the other requirements for a spousal relationship met?

9. The applicant provided to the Tribunal a copy of the primary decision record.  It indicates that the applicant sought the visa on the basis of her relationship with the sponsor but in December 2017 she advised the Department that the relationship had ceased.

10. 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 she continues to be in a relationship with the sponsor.

11. 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.

12. 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.

13. 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. 820.221.

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.

    Rosa Gagliardi
    Member