Hasani (Migration)

[2018] AATA 3232

Hasani (Migration) [2018] AATA 3232 (12 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jamileh Hasani

APPLICANT:  Mr Ahmad Ramin Ahmadi

CASE NUMBER:  1608756

DIBP REFERENCE(S):  NA

MEMBER:Nicholas McGowan

DATE:12 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 12 July 2018 at 1:29pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Applicant did not respond to hearing request – Insufficient evidence of relationship before the Tribunal – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations 1994 (Cth), Schedule 2, cls 309.211(2), 309.221

STATEMENT OF DECISIONS AND REASONS

VISA REFUSAL

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 April 2016 to refuse to grant the applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the partner visa on 23 June 2015 on the basis of his relationship with his sponsor.

   REVIEW

3. On 17 June 2016 the Tribunal wrote to the review applicant and advised it had received an application for review of the delegate’s decision to refuse to grant a Partner (Provisional) (Class UF) visa.

4. On 22 March 2018 the Tribunal wrote to the review applicant advising her it had considered all the material before it relating to the visa applicant’s application but it was unable to make a favourable decision on that information alone.

5. The Tribunal invited the review applicant and visa applicant to give oral evidence and present arguments at a hearing on 11 July 2018. The review applicant was advised at that time that if she did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.  The hearing invitation was sent to the review applicant at the address the review applicant provided in her application for review. At no point has the Tribunal received a reply to the hearing invitation.

6. As a courtesy, the Tribunal also sent the review applicant two courtesy hearing reminders via SMS (on 4 July 2018, and again on 10 July 2018) to the mobile telephone number the review applicant provided the Tribunal.

7. The applicant did not appear before the Tribunal on the scheduled hearing date 11 July 2018.

8. As at the time of this decision the Tribunal has received no further communication from the review applicant other than a request for a ‘fee reduction’ request which was granted on 21 June 2016 (folio 58).

9. The Tribunal has carefully considered whether to adjourn the review and invite the applicant to another hearing. However, given the applicant has made no contact with the Tribunal since the fee reduction request, and taking into account that the parties have provided no reasons why they couldn’t attend the scheduled hearing, nor has the Tribunal received any requested for additional time in order to prepare for an alternate hearing date, in the circumstances, and under s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. A number of questions arise from this application:

11. Whether the applicant and his sponsor were in spousal relationship at the time of the visa application (cl309.211(2)), and;

12. Whether the applicant continues to satisfy the criterion in cl.309.211 at the time of decision: cl.309.221. 

13. Although the applicant provided some evidence to the Department at the time of application in 2015, and further documentary evidence received as late as 21 June 2016 (as part of the ‘fee reduction’ request), since that time there is no evidence whatsoever before the Tribunal that the applicant and his sponsor remained, or are currently in, a spousal relationship. For example there is no evidence before the Tribunal since June 22, 2016 and onward, concerning the financial aspects of their relationship, the nature of any household, any social aspects of the relationship, or the nature of the persons’ commitment to each other.

14. Therefore, the Tribunal is unable to be satisfied that at the time of decision the parties are in a spousal relationship, and therefore no evidence before the Tribunal that the applicant continues to satisfy cl.309.211 at the time of decision: cl.309.221.

15. There is also no evidence before the Tribunal that that the applicant satisfies any of the alternate criteria in cl.309.221(3).

16. Therefore, the applicant does not meet cl.309.221.

17. Given the above, the Tribunal did not need to go on to determine whether the applicant satisfied the time of application criteria in cl.309.211(2).

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

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