Giri (Migration)

[2018] AATA 552

Giri (Migration) [2018] AATA 552 (13 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anil Giri

CASE NUMBER:  1608052

DIBP REFERENCE(S):  BCC2015/967234

MEMBER:Kira Raif

DATE:13 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 February 2018 at 8:48am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Partner of an Australian citizen – Relationship ceased – Sponsorship withdrawn – No mutual commitment to a shared life

LEGISLATION

Migration Act 1958, ss 5F, 65, 359A

Migration Regulations 1994, Schedule 2 cl 820.221, r 1.15

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 20 May 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Nepal born in February 1989. He applied for the visa on 27 March 2015 on the basis of his relationship with his sponsor. 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 visa grant. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 13 February 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The

5. Clauses 820.(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

6. ‘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 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.1.15A(3).

   Are the requirements for a spousal relationship met?

7. The application was made on the basis that the applicant was in a relationship with the sponsor. The applicant provided to the Tribunal a copy of the primary decision record which indicates that in March 2016 the sponsor advised the Department that she wished to withdraw the sponsorship because the relationship has ended. The applicant wrote to the Tribunal, in response to the Tribunal’s correspondence under s. 359A of the Act, confirming that his relationship with the sponsor ended and outlining the circumstances of that relationship.

8. The applicant presented no documentary evidence since the visa refusal to show that his circumstances have changed or that he continues to be in a relationship with the sponsor. In oral evidence the applicant confirmed that his relationship with the sponsor ended. 

9. 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.

10. 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.

11. 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 the requirements in cl. 820.221.

12. The applicant told the Tribunal that the relationship broke down due to a misunderstanding and that he wants to stay in Australia. The Tribunal acknowledges that evidence but, having found that the applicant does not meet the requirements for the grant of the visa, the Tribunal must affirm the decision under review.

    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) visa.

    Kira Raif
    Senior Member