Leonard (Migration)

[2017] AATA 627

Leonard (Migration) [2017] AATA 627 (13 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Patrick Brian Leonard

CASE NUMBER:  1611359

DIBP REFERENCE(S):  CLF2013/252119 CLF2016/45401

MEMBER:Glynis Bartley

DATE:13 April 2017

PLACE OF DECISION:  Sydney

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

Statement made on 13 April 2017 at 5:40pm

CATCHWORDS
Migration – Partner (Residence)(Class BS) visa – Subclass 801 (Partner) - Relationship broken down – Sponsorship withdrawn – No exceptional circumstances exist

LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2 – cl 801.221, cl 801.221(2), (5) and (6), r.1.09A, r.1.15A

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in the present case is whether the applicant, Mr Patrick Brian Leonard, continues to be in a de facto relationship with his sponsor, Ms Prue Louise Rossiter, and if not, whether any of the exceptions to the requirement that he continue to be the spouse or de facto partner of Ms Rossiter apply. 

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant Mr Leonard a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

3. Mr Leonard applied for the visa on 14 October 2013 on the basis of his relationship with Ms Rossiter. 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.

4. Mr Leonard was granted a Temporary Partner visa (Subclass 820) on 9 March 2015.

5. Ms Rossiter advised the Department on 1 June 2015 that she wished to withdraw her sponsorship of the application because her relationship with Mr Leonard had broken down. Ms Rossiter contacted the Department the following day to recant her withdrawal.

6. The Department wrote to Mr Leonard on 18 August 2015 to request further information to process the visa application. Mr Leonard contacted the Department on 5 November 2015 and stated that he was under the impression that his Temporary Partner visa had been cancelled due to the breakdown of the relationship.

7. Ms Rossiter emailed the Department on 5 February 2016 to advise that she and Mr Leonard had again reconciled. On 23 February 2016 Ms Rossiter wrote to the Department to advise that she wished to withdraw the sponsorship as the reconciliation had been unsuccessful.

8. On 29 February 2016 Ms Rossiter advised the Department that her email had been hacked and she did not send the email of 23 February 2016. Ms Rossiter said that she and Mr Leonard were still in a relationship.

9. The Department wrote to Mr Leonard and Ms Rossiter on 23 March 2016 to request further information about the status of their relationship. Mr Leonard telephoned the Department on 2 May 2016 and confirmed that he had received the email of 23 March 2016 but had not yet responded. No further information was received from Mr Leonard.

10. The delegate refused to grant the visa on 11 July 2016 on the basis that Mr Leonard did not satisfy cl.801.221 because he was no longer in a de facto relationship with Ms Rossiter.  The delegate found that there was no evidence that any of the relevant exceptions applied in Mr Leonard’s case.

11. Mr Leonard appeared before the Tribunal on 13 April 2017 to give evidence and present arguments. Mr Leonard was represented in relation to the review by his registered migration agent who did not appear at the hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. There is a certificate on the Department file issued under s.376 of the Act in relation to information that Ms Rossiter provided to the Department when she withdrew her sponsorship in June 2015. The Tribunal considers the certificate valid but has not placed any weight on that information because Mr Leonard confirmed at the hearing that his relationship with Ms Rossiter has broken down. The other information provided by Ms Rossiter is not relevant to the issues to be determined by the Tribunal. 

14. Clause 801.221(2) requires that if Mr Leonard is a holder of a Subclass 820 visa he must continue to be sponsored for the grant of the Subclass 820 (Partner) visa by the sponsoring partner or the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored Mr Leonard for that visa and Mr Leonard is the spouse or de facto partner of the sponsoring partner, and subject to subclauses (6A) and (7), at least two years of passed since the application was made.

15. Ms Rossiter notified the Department on 1 June 2015 that she and Mr Leonard were no longer in a relationship and she wished to withdraw her sponsorship. Although Ms Rossiter later recanted her withdrawal of the sponsorship, Mr Leonard did not respond to the Department’s request for additional information about his relationship with Ms Rossiter.

16. Mr Leonard gave oral evidence at the hearing that his relationship with Ms Rossiter had broken down and resumed on a number of occasions. Mr Leonard told the Tribunal that his relationship with Ms Rossiter finally broke down around four months ago, although they remain in contact and are good friends. The Tribunal accepts on the basis of that evidence that the relationship between Mr Leonard and Ms Rossiter has ceased.

17. It follows that at the time of the Tribunal’s decision Mr Leonard is not the spouse or de facto partner of Ms Rossiter within the meaning of r.1.15A or r.1.09A of the Regulations.

18. Exceptions to the requirement that Mr Leonard continue to be the spouse or de facto partner of Ms Rossiter are provided in cl.801.221(5) and (6).

19. In summary, the three exceptions that may be applicable are if (1) the sponsoring partner has died; (2) the sponsoring partner has committed family violence against the applicant or a dependent child of the sponsoring partner or of the applicant or of both of them; or (3) both the applicant and the sponsoring partner have ongoing legal rights or obligations in respect of a child.

20. In this matter there is no evidence that any of the exceptions apply.  Ms Rossiter is still alive and therefore cl.801.221(5) does not apply.  Mr Leonard has not made any claims that he or a dependent child of Ms Rossiter or Mr Leonard or of both of them has suffered family violence committed by Ms Rossiter. On the contrary, Mr Leonard told the Tribunal that this was not the case. Consequently, cl.801.221(6)(c)(i) does not apply. Mr Leonard gave oral evidence at the hearing that he and Ms Rossiter do not have any ongoing legal rights or obligations in respect of any child and therefore cl.801.221(6)(c)(ii) is not applicable. 

21. Furthermore, Mr Leonard has not claimed, and there is no evidence before the Tribunal, that he meets the alternative criteria in cl.801.221.

22. For the reasons above, Mr Leonard does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Glynis Bartley
    Member