Laszlo (Migration)

[2021] AATA 2554

Laszlo (Migration) [2021] AATA 2554 (17 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tibor Laszlo

CASE NUMBER:  1805021

HOME AFFAIRS REFERENCE(S):          BCC2015/2170265

MEMBER:Antoinette Younes

DATE:17 May 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 17 May 2021 at 1:12 pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – relationship has ceased – applicant does not satisfy the sponsorship requirement – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994,r 1.03, Schedule 2, cls 820.211, 820.221

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 Home Affairs 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 27 July 2015 on the basis of his relationship with his then sponsor. 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). 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 delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a).

4. The applicant appeared before the Tribunal on 28 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s mother, Ms Gita Teher.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Although the delegate refused the visa on the basis of cl 820.211(2)(a), there is information before the Tribunal indicating that the applicant does not meet another threshold criterion. 

   Is the applicant sponsored?

7. Clause 820.211 requires at the time of application, the applicant meets several criteria. These include cl 820.211(2)(c) which 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 reg 1.03 of the Regulations).  At the time of decision, the applicant must continue to meet the requirement of being sponsored by the sponsor, cl 820.221(1)(a).   Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved (cl 820.221(2) and cl 820.221(3)).

8. By way of background, the applicant arrived in Australia on 31 January 2015 as the holder of a visitor visa, valid for three months. He departed Australia on 25 April 2015 and returned on 29 April 2015. On 27 July 2015, the applicant lodged the partner visa application, which was refused by the delegate on 6 February 2018, essentially on the basis of the delegate not being satisfied that the applicant and the sponsor are in a genuine and continuing relationship as defined.

9. In accordance with s.359AA, the Tribunal advised the applicant that on 10 April 2019, the sponsor advised the Tribunal that from 2 March 2019, she was no longer the applicant’s partner and that she was filing for divorce. She requested withdrawal of her sponsorship application. When invited to comment on or respond to that information, the applicant confirmed that this is correct and that he is now divorced from the sponsor.  The applicant advised the Tribunal that he and the sponsor divorced on 16 January 2021.

10. The Tribunal explained to the applicant that unless there are circumstances that could fall within any of the exceptions, the Tribunal would not have discretion in this matter and that it would appear that he does not meet the requirement of being sponsored. The Tribunal discussed with the applicant the three exceptions, namely death of the sponsoring partner, domestic/family violence, and child.  The applicant confirmed that none of those exceptions is applicable to his circumstances.

11. On the evidence, the Tribunal finds that at the time of application, the applicant was sponsored by Ms Mitra Shahriari who had turned 18.  Therefore, the Tribunal finds that at the time of application, the applicant met cl 820.211(2)(c). However, in light of the fact that the applicant’s relationship with the sponsor has now ceased, he does not meet the time of decision criterion of cl 820.221(1)(a), which requires, amongst other things, that the applicant must continue to meet the requirements of the applicable subclause, such as continue to be sponsored by the sponsor, which is not the case in this instance.

12. In essence and for the above reasons, the Tribunal is satisfied that at the time of decision, the applicant is not sponsored and consequently he does not satisfy the sponsorship requirement. There is no evidence before the Tribunal that at the time of decision, the applicant satisfies any of the alternative criteria.

13. For the reasons above, the Tribunal finds that 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.

    Antoinette Younes

    
    Senior Member