Kumar (Migration)

[2019] AATA 2757

Kumar (Migration) [2019] AATA 2757 (10 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashwani Kumar

CASE NUMBER:  1830589

DIBP REFERENCE(S):  CLF2013/136672

MEMBER:Ann Duffield

DATE:10 June 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 10 June 2019 at 9:49am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine spousal relationship – no response to invitation to comment on information – sponsorship withdrawn by sponsoring partner – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; 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 1 October 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 a Partner (Temporary) (Class UK) (Subclass 820) visa and a Partner (Residence) (Class BS) (Subclass 801) visa on 19 June 2013, on the grounds of being in a spousal relationship with an Australian citizen, his sponsor, who lodged a sponsorship in support of the application. The applicant was granted a subclass 820 visa on 11 July 2014. 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.

3. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 18 October 2018.

4. Information on the file of the Department of Home Affairs (the Department) indicates that the applicant’s relationship with the sponsor has ended and that the sponsoring partner has withdrawn their sponsorship of the application. One of the requirements for grant of the visa is that the applicant continues to be the spouse or de facto partner of the sponsor at the time of the decision, unless a specified exception to that requirement applies.

5. On 23 April 2019, the Tribunal wrote to the applicant, at the contact email address provided by the applicant at lodgement of the review application, pursuant to s.359A and s.359(2) of the  Act. The applicant was invited to comment on or respond to the information that the relationship with the sponsor had ended and the sponsor had withdrawn their sponsorship. Further, the applicant was invited provide information in relation to meeting the required criteria to be satisfied for the grant of the visa if they are no longer in a relationship with the sponsoring partner.

6. The applicant was informed that if the Tribunal did not receive either his written comments or response, or the information requested within the period allowed or as extended, it may make a decision on the review without taking any further action to obtain his views or further information. The applicant was also informed that he would lose any entitlement to a hearing.

7. The Tribunal did not receive a response from the review applicant within the specified timeframe for response, and, as at the time of this decision, has received no correspondence from the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The criteria that must be met for a Subclass 801 visa to be granted are set out in Part 801 of Schedule 2 to the Regulations and include cl.801.211 and 801.221.

10. Relevantly, cl.801.221(1) requires 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, Australian permanent resident or an eligible New Zealand citizen.

11. Clause 801.211(c) requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations). Clause 820.221(2)(b)(i)requires that at the time of decision, the applicant must continue to be sponsored by the sponsoring partner.

12. Pursuant to cl.801.221 (5) and (6), exceptions to the requirement for the applicant to continue to be the spouse or de facto partner of the sponsor, and to be sponsored by the sponsor, at the time of decision apply in certain circumstances. These circumstances are where the sponsor has died, or family violence, as defined, has occurred, or a child is involved in relation to whom the applicant and the sponsor both have certain obligations.

13. The applicant has provided no comments on or response to the information that his relationship with the sponsor has ended and that the sponsoring partner has withdrawn their sponsorship of the application. Further, the applicant has not, as invited, provided information relevant to the exception to these requirements.

14. There is therefore no evidence before the Tribunal that the applicant continues to be the spouse or de facto partner of the sponsor and continues to be sponsored as required. Further there is no evidence before the Tribunal that the sponsor has died, that specified family violence has occurred or that the relevant circumstances in relation to a child exist.

15. On the evidence before the Tribunal the requirements of cl.801.221 are therefore not met.

    CONCLUSION

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

    DECISION

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

    Ann Duffield
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

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