Khan (Migration)

[2021] AATA 5578

Khan (Migration) [2021] AATA 5578 (25 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Babar Khan

CASE NUMBER:  2001298

HOME AFFAIRS REFERENCE(S):          BCC2017/1568523

MEMBER:Meena Sripathy

DATE:25 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 25 August 2021 at 10:37am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine continuing relationship – relationship ceased and sponsorship withdrawn – no responses to tribunal’s invitations to comment and provide information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65, 359(2), 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 1.09A(3), Schedule 2, cls 820.211(2)(a), 820.221(1)(a)

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 on 20 January 2020 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 2 May 2017 on the basis of his relationship with his Australian citizen sponsor, Bernadette Marie-Therese Moore, who lodged a sponsorship in support of the application. 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied, on the evidence and information provided, that the applicant was the spouse or de facto partner of the sponsor at time of application.  The delegate’s decision record, provided by the applicant to the Tribunal with his review application, indicated that the sponsor advised the Department on 30 January 2018 that they wished to withdraw their sponsorship for the Partner visa application as the relationship had ceased.  This information was given to the applicant and he was invited to comment and provided additional information in two separate letters, on 26 November 2019 and 5 December 2019 but no further information was provided to the Department. 

4. On 15 July 2021 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting the review applicant to comment or respond to information before it which indicated that the relationship with the sponsoring partner had ended and the sponsor had withdrawn the sponsorship.  The invitation explained that this information was relevant because the Tribunal may rely on it, subject to his comments or response, to conclude that at the time of this decision the applicant was no longer the spouse or de facto partner of the sponsor. If the Tribunal is not satisfied the applicant is the spouse or de facto partner of the sponsor, and if the applicant does not meet any of the alternative criteria for the grant of the visa, the Tribunal may conclude that the applicant does not meet the requirements for the grant of the visa and affirm the decision under review. The applicant was also invited in this letter, under s359(2) of the Act, to provide information addressing the exceptions to the continuing relationship requirement, including relating to the death of the sponsoring partner, family violence or responsibilities relating to children.  The applicant was invited to provide his response and/or information to the Tribunal by 29 July 2021.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the comments and/or information was not provided in writing by 29 July 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments or information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The review applicant has not provided any comments or information within the prescribed period and no extension has been granted. To date no response has been received by the Tribunal. In these circumstances, s 359C applies and pursuant to s 360(3) the review 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments or information.

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

   Consideration of claims and evidence

   Whether the parties are in a spouse or de facto relationship

8. Clause 820.211(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. In the present case the applicant claimed, at time of application, to be the de facto partner of the sponsor, Bernadette Marie-Therese Moore, an Australian citizen who lodged a sponsorship in support of the application.

9. The sponsor subsequently informed the Department, in January 2018, that she is no longer with the applicant and no longer wishes to sponsor his application. 

   Are the parties in a de facto relationship at time of decision?

10. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

11. In forming an opinion whether they are in a de facto relationship consideration must be given 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 reg 1.09A(3) which is attached to this decision.

12. As indicated above, it is indicated in the delegate’s decision record, provided by the applicant to the Tribunal with his review application, that the sponsor advised the Department on 30 January 2018 that they wished to withdraw their sponsorship for the Partner visa application as the relationship had ceased.  This information was given to the applicant and he was invited to comment and provided additional information in two separate letters, on 26 November 2019 and 5 December 2019 but no further information was provided to the Department. 

13. Since the application for review has been before the Tribunal, no further information or evidence of the relationship has been provided. On 15 July 2021 the Tribunal put particulars of the adverse information before it, being the withdrawal of the sponsorship by the sponsor and information that the relationship had ceased,  inviting the applicant to respond or comment. He was also invited to provide information to support that he met any of the alternate criteria for the grant of the visa in circumstances that he was no longer in a relationship with the sponsor.  To date no response or information has been provided.

14. On the basis of the above information and in the absence of any other evidence, the Tribunal is not satisfied  the applicant and sponsor are in a genuine and ongoing relationship at this time. There is no evidence relating to financial, social, nature of the household or commitment of the parties to support a finding that they have a mutual commitment to a shared life to the exclusion of all others, have a genuine and continuing relationship or are living together or not living separately and apart on a permanent basis at this time.  The evidence of the sponsor’s information provided to the Department on 30 January 2018 that is she no longer with the applicant and no longer wishes to sponsor him the application  and absence of any other information since then indicates that the parties are not in a  relationship at this time.

15. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2) are met at the time of this decision.  On the basis of the sponsor’s statement that she no longer wishes to sponsor the applicant, it is not satisfied that the applicant is sponsored by the sponsoring partner at the time of this decision. Therefore, the applicant does not meet cl.820.221(1)(a). 

16. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.820.220(2) or (3).

17. Therefore the applicant does not meet cl 820.221.

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

    decision

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

    Meena Sripathy
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being in a de facto relationship with each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).