Duque Gallego (Migration)

[2020] AATA 5204

Duque Gallego (Migration) [2020] AATA 5204 (25 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mauricio Duque Gallego

CASE NUMBER:  1911152

HOME AFFAIRS REFERENCE(S):          BCC2018/3672446

MEMBER:Donna Petrovich

DATE:25 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the      applicant a Partner (Temporary) (Class UK) (Subclass 820) visa.

Statement made on 25 November 2020 at 6:43pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ended and sponsorship withdrawn – no substantive response to invitation to comment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65, 359A, 359C, 360, 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 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 (the Act). The applicant applied for the visa on 27 September 2018. The delegate refused to grant the visa on 29 April 2019.

2. The applicant is a national of Colombia born on 8 April 1990, the applicant applied for the visa on 27 September 2018 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the 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 visa grant.

3. On 23 September 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide comments in writing on information that it considered would be part of the reason for affirming the decision under review.  The invitation was sent to the last address provided in connection with the review, and advised that if comments or information were not provided within 14 days, the Tribunal may make a decision on the review without taking further steps to obtain the comments or 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.

4. The applicant has not provided the comments within the prescribed period.  On 11 October 2019, the Tribunal received communication from the applicant seeking an extension of time to provide his comments. As this request was received after the 14 day prescribed period, the Tribunal was unable to grant an extension of time. In these circumstances, s.359C applies and pursuant to s.360(3) the 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 them to appear: Hasran v MIAC [2010] FCAFC 40.

5. The Tribunal informed the applicant that although he had lost his entitlement to a hearing, the Tribunal is bound to consider any evidence before it at the time a decision is made and as such the applicant is free to provide any further submissions they deem appropriate before a decision was made. At the time of this decision, the applicant has not provided any further submissions to the Tribunal, aside from notifying the Tribunal that his representative and authorised recipient had ceased to act on his behalf.

   Relevant law

6. Subclause 820.211(1) provides that the applicant is not the holder of a Subclass 771 (Transit) visa, and meets the requirements of subclauses (2), (5), (6), (7), (8) or (9).

7. To satisfy the requirements of subclause 820.211(2), the applicant must, among other things be sponsored by a spouse or a de facto partner who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

8. ‘Spouse’ is defined in s.5F of the act and provides that a person is the spouse of another where the two persons are in a married relationship.  Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act; there must be a mutual commitment to a shared life as a married couple to the exclusion of all others; the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).  In forming an opinion about these matters, regard must be had to all the circumstances of the relationship.  This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in r.15A(3).

   Are the 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 applied for the visa on 27 September 2018 on the basis of his relationship with the sponsor. However, on 4 January 2019, the sponsor informed the Department that the relationship had ended and that she wished to withdraw sponsorship. The applicant was invited to comment on that information but did not respond.  As noted above, he also did not respond to the Tribunals s.359A correspondence which referred to the withdrawal of the sponsorship.

10. 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 hat 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.

11. The Tribunal is not satisfied 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 that 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 factor partner of the sponsor.

12. There is no evidence before the Tribunal that the sponsor has died.  There is no evidence in relation to any family violence and 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 the requirements in cl.820.221.

    Conclusion 

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

    Decision

14. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary)(Class UK) (Subclass 820).

    DECISION

    Donna Petrovich
    Member