Coe (Migration)

[2024] AATA 454

Coe (Migration) [2024] AATA 454 (9 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mark Antony Coe

REPRESENTATIVE:  Mr Harry De (MARN: 1791193)

CASE NUMBER:  2014364

HOME AFFAIRS REFERENCE(S):          BCC2018/2729065

MEMBER:Moira Brophy

DATE:9 February 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 09 February 2024 at 1:08pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – relationship ceased and sponsorship withdrawn – no response to invitation to provide information after extensions of time or appearance at hearing after postponement – no evidence of meeting alternative criteria – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 362

Migration Regulations 1994 (Cth), Schedule 2, cls 820.211(2), 820.221

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the applicant is able to meet the sponsorship requirements for the grant of a visa. To meet these requirements the visa applicant must be in a spousal relationship with the sponsor both at the time of application and at the time of decision.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 September 2020 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

3. The applicant applied for the visa on 21 July 2018 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). 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.

4. On 21 January 2020 the sponsor advised the Department that the relationship between her and the applicant had broken down and she wished to withdraw her sponsorship.

5. The Department contacted the applicant and advised him of the information received that the sponsorship had been withdrawn and he was given the opportunity to comment. He was also given the opportunity to provide additional information as to why his application should still be considered and the opportunity to withdraw his application.

6. The applicant applied on four occasions for additional time which was granted on each occasion.

7. On 9 July 2020 the applicant provided a response to the letter of 21 January 2020 noting there had been a breakdown in the relationship between the applicant and the sponsor.

8. On 3 September 2020 the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 and cl 820.221 because the delegate was not satisfied the applicant and his sponsor were in a genuine and continuing relationship either at the time of application or at the time of decision.

9. On 23 September 2020, the review applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the Tribunal). A copy of the decision was provided to the Tribunal at the time of application.

10. On 19 July 2021 the Tribunal wrote to the applicant and invited him to provide information as to whether, given the information he was no longer sponsored for the visa, he was able to meet any of the exceptions that would allow him to be granted the visa. He was requested to provide the information on or before 2 August 2021.

11. On 2 August 2021 a request was received for a four-week extension of time as the migration agent advised the applicant was in the process of getting the necessary documents to respond to the matters raised in the letter.

12. An extension was granted to 30 August 2021.

13. On 27 August 2021 a further extension of time was requested as the migration agent advised the applicant was still in the process of arranging the required documents due to continuous lockdown restrictions, therefore, additional time was needed to respond.

14. On 30 August 2021 the Tribunal responded to the request for an extension of time advising
    that in order to assess whether a further extension would be granted, the applicant was to provide further information as to what documents or information the applicant intended to submit, along with an explanation regarding the actions that had been taken to obtain the documents to date. The applicant was asked to provide a response by close of business on 30 August 2021.

15. An automated response from the migration agent was received. No additional documentation was provided.

16. On 6 November 2023, the Tribunal wrote to the review applicant through his representative, inviting him to attend an in-person hearing at the Tribunal on 13 December 2023 at 10:30am.

17. On 29 November 2023 the migration agent requested an adjournment as he stated he was a newly appointed migration agent, and he required time to appraise himself of the matter and provide additional information.

18. On 5 December 2021 the applicant was advised the hearing had been postponed at his request and the matter was set down for 8 February 2024 at 10 am.

19. On 7 February 2024 a request for a postponement was received. The applicant stated he was very stressed as his father’s health was deteriorating, he had a heart attack in July 2023, and he had been diagnosed with cancer. Medical evidence as to the applicant’s father’s medical condition was provided as well as documents establishing the relationship between the applicant and his father.

20. On 7 February the applicant was advised through his migration agent that the request for a postponement of the hearing had been refused. In its response the Tribunal noted that according to records the father of the applicant departed Australia on 30 December 2023, and he was resident in another country. Further, the Tribunal noted that an invitation to provide information under s 359(2) of the Act was sent on 19 July 2021 and at the applicant’s request, time was extended to provide a response. It was noted in that letter that if the applicant failed to provide the information by the specified due date, he would lose his entitlement to a hearing. The Tribunal advised that it was unable to locate any response to that request. Further, in the interests of procedural fairness, a hearing for this matter had previously been postponed at the request of the applicant. Given the history of this matter, the Tribunal was not persuaded that the hearing date and time should be vacated.

21. There was no appearance of the applicant at the appointed time for hearing.

22. The Tribunal acknowledges that the ability to proceed to decision without further seeking information from the applicant is a discretionary one and that such discretion should be used fairly. The Tribunal considers, however, that every reasonable opportunity was granted to the applicant to provide information as to his circumstances and to attend the hearing.

23. Given the paucity of information on file at the time of application and the applicant's limited effort to provide the Tribunal with updated information that would point to the parties having a genuine intention to live together as spouses, the Tribunal does not consider it is required to make the applicants' claims for them.

24. In these circumstances and pursuant to s 362 of the Act, the Tribunal has decided to make a decision on the review on the papers.

25. The applicant was represented in relation to the review.

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

    Background

27. The applicant was born in 1962 in Essex, United Kingdom, and he is a citizen of the United Kingdom. He was married to Ms Carol Hammet in the period from 7 April 1984 to 13 August 1993. There are two children of the marriage. He was in a de facto relationship with Ms Kerry Anne Woolsgrove in the period from 25 September 1996 to 7 July 2008. There is one child of the relationship.  His parents and one brother reside in United Kingdom, and he has one sister in Australia. 

28. The applicant lodged a valid application for a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (residence) (Subclass 801) visa on 21 July 2018 on the basis of being in a spousal relationship with an Australian citizen, eligible sponsor Linda Elizabeth Rose-James.

29. The applicant’s sponsor was born in 1972 in Australia.  She was previously married to Geoffrey Sparkes in the period from 10 October 1998 to 21 December 2009. There are two children of the marriage. Her parents, two sisters and three brothers reside in Australia.

30. On the visa application form the applicant stated that he met his sponsor on 26 March 2015 at Moss Vale. The parties commenced a de facto relationship on 3 May 2015 and they committed to a shared life to the exclusion of all others on 24 June 2015.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Is the applicant sponsored?

31. 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. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen.

32. 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).

33. Based on information in the Department file, the sponsor advised on 21 January 2020 in an email, she was no longer in a de facto relationship with the applicant.

34. The Tribunal is not satisfied on the evidence before it that the applicant continues to be the spouse or de facto partner of the sponsoring partner. Accordingly, the Tribunal finds the applicant in this case no longer continues to be sponsored for the grant of the visa by his sponsoring partner. The applicant does not satisfy cl 820.221(2).

35. The Tribunal noted that the applicant may satisfy cl 820.221 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 sponsor has ceased. These include the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children.

36. There is no evidence or suggestion before the Tribunal that the applicant meets the other alternative criteria in cls 820.211(3)-(6). There is no evidence or claim that the sponsoring partner has died and there is no evidence or claim of family violence.

37. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria in cls 820.211(2A) and (8) which rely on specific procedural scenarios that do not apply in this case.

38. The Tribunal has considered whether the applicant's case has unique or exceptional circumstances that warrant referring this case to the Minister for possible consideration of the use of the Minister's intervention powers.

39. The Tribunal has not received any evidence of the applicant’s circumstances and given it has no evidence on which to make findings, the Tribunal does not consider it appropriate to refer the matter to the Minister.

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

    DECISION

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

    Moira Brophy
    Member