Charu Vikram (Migration)

[2024] AATA 3710

Charu Vikram (Migration) [2024] AATA 3710 (1 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Charu Vikram

CASE NUMBER:  2305529

HOME AFFAIRS REFERENCE:               BCC2021/1871770

MEMBER:Suseela Durvasula

DATE:1 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 01 October 2024 at 12:40pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased and sponsorship withdrawn – no response to invitation to provide information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65, 359, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 1.09A(3), Schedule 2, cls 820.211(2), 820.221

CASE
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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 September 2021 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2). The delegate was not satisfied the applicant was the spouse or

   
   

   de facto of the sponsoring partner at the time of application. On 29 March 2022, the Department received information from the sponsor that she had withdrawn her sponsorship of the partner visa and the relationship with the applicant had ceased.

4. On 2 September 2024, the Tribunal wrote to the applicant under s 359 of the Act, inviting him to provide information in writing about whether he was the spouse or de facto partner of the sponsoring partner; or whether any of the exceptions applied (being death of the sponsoring partner, family violence or certain court orders or responsibilities in relation to children).

5. The invitation was sent to the last address provided in connection with the review and advised that if the information was not provided in writing by 16 September 2024, the Tribunal may make a decision on the review without taking further steps to obtain the information 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.

6. The Tribunal finds the applicant has not provided the information 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 therefore decided to proceed to decision without taking further steps to obtain the information.

7. For the following reasons, the Tribunal has concluded that the decision under should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is the spouse of the sponsoring partner at the time of this decision. If not, the Tribunal must decide whether any of the exceptions in cl 820.221 apply.

   Whether the parties are in a spouse or de facto relationship

9. Clauses 820.211(2)(a) requires 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.

10. At the time of decision, the applicant must continue to be the spouse or de facto partner of the sponsoring partner: 820.221(1). Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred or there are certain court orders or responsibilities in relation to children.

11. In this case, at the time of application, the applicant claimed to be in a de facto relationship with his sponsoring partner. 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).

12. 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 at the time of decision?

13. The applicant applied for the visa on the basis of being in a de facto relationship with the sponsor.

14. On 29 March 2022, the Department received information from the sponsor that she had withdrawn her sponsorship of the partner visa and the relationship with the applicant had ceased. This information was contained in the delegate’s decision record, which was provided by the applicant for the purpose of the review. The Department put this information to the applicant in a procedural fairness letter and the applicant did not respond to this letter or provide further evidence of his relationship with the sponsor. He did not provide any further information after lodging the application for review.

15. The Tribunal finds, on the evidence before it, that the sponsor has withdrawn the sponsorship and the relationship with applicant has ceased.

16. There is no evidence that at the time of decision, 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.

17. The Tribunal is not satisfied on the 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. Therefore, the applicant does not meet cl 820.221(1)(a) and in turn, fails to meet cl 820.221(1).

    Do any of the other clauses in cl 820.221 apply?

18. Clause 820.221(2) requires the applicant would have continued to be the spouse of the sponsoring partner, except that the sponsoring partner had died. There is no evidence before the Tribunal that the sponsor has died. The Tribunal finds the applicant does not meet cl 820.221(2).

19. Clause 820.221(3)(b)(i) provides an exception if the relationship between the applicant and the sponsor has ceased and the applicant has suffered family violence. In this case, there is no evidence in relation to any family violence. The Tribunal finds the applicant does not meet

    
    

    cl 820.221(3)(b)(i).

20. Clause 820.221(3)(b)(ii) provides an exception if the relationship between the applicant and the sponsor has ceased and there are certain court orders regarding children. In this case, there is no evidence that the applicant has a biological child with the sponsor or that the applicant has 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. The Tribunal finds the applicant does not meet cl 820.221(3)(b)(ii).

21. As neither cl 820.221(3)(b)(i) nor cl 820.221(3)(b)(ii) are met, the Tribunal finds the applicant fails to meet cl 820.221(3).

22. As there is no evidence of a sponsorship in force at the time of this decision, the Tribunal finds the applicant does not meet cl 820.221(4). The Tribunal finds cl 820.221(5) is not relevant to the circumstances in this case.

23. As the applicant does not meet any of the elements of cl 820.221, the Tribunal is not satisfied the applicant meets the requirements in cl 820.221 at time of decision.

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

    DECISION

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

    Suseela Durvasula
    Member