KAO (Migration)

[2018] AATA 1611

KAO (Migration) [2018] AATA 1611 (21 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms CHING-FANG KAO

CASE NUMBER:  1804617

DIBP REFERENCE(S):  BCC2015/1877402 BCC2018/1729554

MEMBER:Justin Owen

DATE:21 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 May 2018 at 3:56pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Sponsorship withdrawn – Practice and Procedure – Extension of time granted – Tribunal sent an invitation to comment – No response from the applicant during the prescribed period – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65, 359A, 359, 359C, 360, 363A
Migration Regulations 1994, Schedule 2 cls 801.211, 801.221

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 Immigration on 20 February 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 June 2015 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (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. Relevantly to this matter the primary criteria include cl.801.221 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the applicant was not, at the time of decision, the spouse (as defined under section 5F of the Act) or the de facto partner (as defined under section 5CB of the Act) of the sponsoring partner.

4. The Tribunal received from the applicant a valid application for review on 21 February 2018. 

5. The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Departmental decision record provided by the applicant to the Tribunal.  The applicant provided no other additional evidence, or made any new claim, to the Tribunal in association with any of the criteria under consideration as part of this review. 

6. On 20 April 2018 the Tribunal wrote to the applicant pursuant to sections 359A and 359(2) of the Act inviting her to comment on or respond to information by 4 May 2018.

7. On 24 April 2018 the Tribunal received a response from the applicant’s representative stating the applicant was currently in China and was due to return to Australia on 2 May 2018.  The applicant’s representative included the applicant’s return flight ticket and her Bridging visa B.  The applicant’s representative requested an extension of time to respond to the Tribunal’s invitation. 

8. On 30 April 2018 the Tribunal agreed with the applicant’s request and extended the time to respond to the Tribunal’s invitation to 18 May 2018. 

9. The Tribunal is satisfied that the applicant was sent an invitation to comment on information under section 359A and 359(2) of the Act. The invitation, dated 20 April 2018, was sent to the last address for service provided by the applicant in connection with her application for review. The Tribunal is satisfied that its agreement to the applicant’s request to extend the time to respond to the Tribunal’s invitation was sent to the last address for service provided by the applicant in connection with her application for review.

10. Where an applicant is invited to comment on or respond to information under section 359A and 359(2) and fails to provide those comments within the prescribed period, 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).

11. The Tribunal has found that the applicant did not provide comments within the prescribed period.  The Tribunal agreed with the applicant’s request for an extension of time and provided a further two weeks beyond the original prescribed period to respond.  The Tribunal has not received any response to its invitation from the applicant.  The Tribunal has decided in this case to now 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. 

12. Given the evidence in the delegate’s decision that the sponsor notified the department that he had withdrew his sponsorship of the applicant on 6 December 2017, 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 801 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for the visa. 

13. Clause 801.221 subclause (1) of the Regulations requires that the applicant must, at the time of decision, satisfy subclause (2), (2A), (3), (4), (5), (6) or (8) of clause 801.221. Relevantly in this case, 801.221 subclause (2) requires that the applicant remains the spouse (as defined under section 5F of the Act), or de facto partner (as defined by section 5CB of the Act) of their sponsoring partner at that time. As the sponsoring partner has withdrawn sponsorship as evidenced in the delegate’s decision record, the applicant in this case no longer continues to be sponsored for the grant of the visa by her sponsoring partner, and the applicant has not provided any evidence that she continues to satisfy cl.820.221(2)(b).

14. The applicant may satisfy clause 801.221 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 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 response was received or claim has been made. 

15. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria in cl.801.211 (3)-(6). 

16. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria cl.801.211 (2A) and (8) which rely on specific procedural scenarios that do not apply in this case.  

    FINDINGS     

17. The Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the subclass 801 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa.

18. Accordingly, for the reasons above, the applicant cannot satisfy the criteria in cl.801.221(2). 

    DECISION

19. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Justin Owen
    Senior Member