Crozier (Migration)

[2022] AATA 4913

Crozier (Migration) [2022] AATA 4913 (1 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Kay Alexandra Crozier

CASE NUMBER:  2204451

HOME AFFAIRS REFERENCE(S):          BCC2020/1724511

MEMBER:Linda Holub

DATE:1 December 2022

PLACE OF DECISION:  Sydney

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

Statement made on 1 December 2022 at 12:01pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – visa applicant and the sponsor are no longer living together in a spousal relationship – relationship with the visa applicant had ceased – applicant is no longer the spouse or de facto partner of the sponsor – decision under review affirmed   

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 376
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221

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 11 June 2020 on the basis of her relationship with her 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.

3.    The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(1)(a) because the delegate concluded based on the evidence available that the visa applicant and the sponsor are no longer living together in a spousal relationship.

4.    The applicant was not invited to appear before the Tribunal to give evidence and present arguments as set out below.

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

BACKGROUND

6.    The visa applicant was born in the United Kingdom in 1988 and is a citizen of the United Kingdom.

7.    The sponsor was born in Australia in 1993 and is an Australian citizen by birth.

8.    According to the application, the visa applicant and sponsor first met through a mutual friend on 19 March 2017 in Adelaide. At the time they began dating, the visa applicant was still in a relationship and married to her ex-husband. When the sponsor moved to Darwin in July 2017, they began a long-distance relationship for the next twelve months. In late 2017 the visa applicant ended her marriage and moved to Darwin in June 2018 to be with the sponsor. They commenced living together in a shared room in a share house in Darwin. On 8 June 2018 they committed to a shared life together to the exclusion of all others.

Consideration of claims and evidence

9.    The issue in the present case is whether the applicant meets the requirements of clause 820.221(1).

Is the applicant sponsored?

1. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of decision the applicant is the spouse or de facto partner of an Australian citizen or permanent resident or eligible New Zealand citizen.

2. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221.

3. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa.

4. On 22 September 2021 the Department was contacted by the sponsor advising she wished to withdraw her sponsorship. She stated her relationship with the visa applicant had ceased and she no longer wished to sponsor her visa.  

5. On 23 September 2021 the Department wrote to the visa applicant referring to the fact that information had been received that the relationship with the sponsor had ended and on 25 November 2021 the Department sent a letter to the applicant containing information concerning the criteria that must be met in order to continue with the application. The letter explained that the Department had received information that her relationship with the sponsor had ended. The applicant was asked to provide certain documentation if she wished to proceed with their application despite the relationship breakdown. The applicant was further asked to contact the Department if their relationship with the sponsor had resumed. The applicant was also given the opportunity to withdraw the application or to provide evidence that she met one of the three circumstances in which she could continue to be considered for the grant of the visa:

   ·the death of the sponsoring partner

   ·family violence

   ·certain court orders or responsibilities in relation to children.

6. No response, evidence or claims were provided by the applicant advising that the relationship was genuine and continuing up to the time of the delegate’s decision.

REVIEW

1. The applicant lodged a review application with the Tribunal on 28 March 2022. At the time of that application, she did not provide any further information or evidence to the Tribunal in support of her application.

2. On 31 August 2022 the Tribunal wrote to the applicant pursuant to section 359(2) of the Act inviting her to provide information by 14 September 2022. The letter explained that it is a requirement for the grant of the visa that at the time of visa application, and at the time of the decision, you are the spouse or de facto partner of the sponsoring partner, unless one of the exceptions applies:

   ·the death of the sponsoring partner

   ·family violence

   ·certain court orders or responsibilities in relation to children.

3. The applicant was invited to provide information in writing that may indicate she is the spouse or de facto partner of the sponsoring partner at present, or alternatively, information that she believes may be relevant to the exceptions.

4. On 13 September 2022 the applicant responded to the Tribunal via email seeking an extension of two weeks to respond to the 359(2) invitation. The following day the Tribunal wrote to the applicant advising the extension of time had been granted and the information was to be received by 28 September 2022. To date no response to the 359(2) invitation has been received.

5. The Tribunal is satisfied that the applicant was sent an invitation to provide information under section 359(2) of the Act. The invitation dated 31 August 2022 and the extension of time dated 14 September 2022 were sent to the last address for service provided by the applicant in connection with her application for review.

6. Where an applicant is invited to comment on or respond to information under section 359(2) and fails to provide those comments within the prescribed period as extended, 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). This was outlined in the letter sent to the applicant.

7. The Tribunal has found that the applicant did not provide comments within the extended prescribed period. No further request for an extension of time to provide comments was received from the applicant. The Tribunal has waited a further two months from the end of the prescribed period without any response from the applicant. The Tribunal has decided in this case to 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. 

8. Given the evidence referred to in the delegate’s decision that the applicant is no longer the spouse or de facto partner of the sponsor 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 820 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for the visa. The applicant does not meet cl.820.221 (1)(a) at the time of decision. 

9. The applicant may satisfy clause 820.221 by meeting the requirements of at least one of the subclauses (2) and (3). 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 she believed may be relevant to these exceptions. No such information was received nor has a claim been made. 

10. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria in cl.820.221 (2)-(3). 

FINDINGS

1. The Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the subclass 820 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa. There is no evidence before the Tribunal or claim made that the applicant meets the alternative criteria. 

2. Accordingly, for the reasons above, the applicant cannot satisfy the criteria in cl.820.221. 

decision

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

Linda Holub
Member