Luo (Migration)

[2017] AATA 1491

Luo (Migration) [2017] AATA 1491 (28 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dingzhang Luo

CASE NUMBER:  1620295

DIBP REFERENCE(S):  BCC2014/2666142

MEMBER:Hugh Sanderson

DATE:28 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 August 2017 at 4:03pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 – Partner of an eligible Australian resident – Sponsor’s Partner visa cancelled – Two children of the relationship – Sponsor not in relationship with her previous sponsor

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulation 1994, Schedule 2 cl 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 15 November 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 10 October 2014 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221 because the delegate found that as the sponsor’s subclass 801 Partner (Residence) visa had been cancelled the applicant was no longer the spouse or de facto partner of a person who is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen.

   Background

4. The applicant is a citizen of China. He first entered Australia in December 2007 holding a subclass 572 Student visa. That visa ceased on 16 May 2012 and the applicant has not held a substantive visa since that time. He applied for a further Student visa, however, this application was refused. He applied for a subclass 457 Temporary Work visa, however, withdrew that application.

5. The sponsor of the applicant is Wai San Chan. She was born in China and is a citizen of China. She first entered Australia in September 2007 holding a subclass 573 Student visa. She has returned to China on three occasions since then for periods of up to 3 months.

6. The parties claimed that they first met each other in June 2009, however, only committed to a de facto relationship with each other on 1 April 2013. They have two children together, Georgia born on 7 April 2011 and Katrina born on 2 January 2015.

7. The sponsor applied for a Partner visa on 20 June 2011 on the basis of her claimed relationship with Roger Chung Yuen. In that application, she claimed that she and Mr Yuen committed to their relationship on 10 February 2010 and they intended their relationship to be a lasting relationship. They were married on 6 July 2010. She was granted a subclass 801 Partner (Residence) visa on 4 December 2012. The sponsor divorced Mr Yuen on 25 July 2013. In her divorce application she claimed that her relationship with Mr Yuen ended in April 2012.

8. After the current application was filed, the Department reviewed the claims that had been made by the sponsor in support of the grant of her subclass 801 Partner (Residence) visa. The Department found the sponsor had provided false or misleading information in respect of the application in that she was never in a committed spousal relationship with her sponsor and that any relationship she had ended prior to the grant of her subclass 801 Partner (Residence) visa. It was noted the child of the sponsor and the current applicant was born at the time the sponsor was claiming to be in a relationship with Mr Yuen.

9. The Department issued a decision to cancel the sponsor’s subclass 801 Partner (Residence) visa on 26 August 2016.

10. The delegate who considered the current application noted that as the sponsor’s subclass 801 Partner (Residence) visa had been cancelled the applicant was no longer the spouse or de facto partner of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen. Accordingly, the delegate found that the applicant did not meet any of the time of decision criteria in cl.820.221 and refused the application. The Department issued the decision on 15 November 2016.

    Information to the Tribunal

11. The sponsor sought a review of the decision cancelling her visa before the Tribunal (differently constituted). The Tribunal issued a decision on 8 August 2017 affirming the decision to cancel the sponsor’s subclass 801 Partner (Residence) visa.

12. The Tribunal wrote to the applicant pursuant to s.359A of the Act stating as follows:

    Affirmation of Department’s decision to cancel sponsor’s visa

    ·     On 8 August 2017 the Tribunal (differently constituted) affirmed the decision to cancel Wai San Chan’s subclass 801 Partner (Residence) visa.

    This information would be the reason, or a part of the reason, for affirming the decision that is under review as Wai San Chan is the sponsor of your Partner visa application. As her subclass 801 Partner (Residence) visa was cancelled by the Department and that decision has been affirmed by the Tribunal on review you are not the spouse or de facto partner of a person who is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen and therefore do not currently meet any of the criteria in cl.820.221.

13. The applicant was required to respond to this information by 24 August 2017. At the same time that the s.359A letter was sent to the applicant, the Tribunal invited the applicant to a hearing to be conducted on 8 September 2017. The applicant was advised that if he failed to respond to the s.359A letter that he would lose his right to a hearing and the hearing date would be vacated.

14. In response to these letters, the applicant’s agent contacted the Tribunal asking if by getting the s.359A letter they could ignore the hearing invitation. The Tribunal wrote to the applicant’s agent on 10 August 2017 stating as follows:

    You were sent correspondence twice this morning. The first was a letter asking you to comment on adverse information. A response is due to the Tribunal on 24/08/2017. The second was an invitation to appear before the Tribunal at a hearing scheduled for 08/09/2017.

    Both of these letters are valid and not to be disregarded, but if you do not respond to the invitation to comment on adverse information by 24/08/2017, you will lose your entitlement to appear at the Tribunal hearing, the hearing will be vacated and a decision on the case will be made on the information currently before the Tribunal.

15. The applicant’s agent responded on 10 August 2017 confirming they would act on the two requests.

16. As at the time of this decision, there has been no response to the s.359A invitation. Accordingly, the applicant has lost his right to a hearing and the Tribunal has proceeded to a decision based on the information currently before it.

17. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the applicant, at the time of this decision is the spouse of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen.

20. The basis of the application is that the applicant is the spouse of Wai San Chan. At the time of the application Wai San Chan held a subclass 801 Partner (Residence) visa and had the right to reside permanently in Australia. Accordingly, at the time of the application the applicant met the criteria in cl.820.211(2)(a). There is no information before the Tribunal which would indicate that the applicant at the time of the application or at any other time met any of the alternate criteria in cl.820.211.

21. The subclass 801 Partner (Residence) visa held by Wai San Chan was cancelled by the Department on 26 August 2016. The decision to cancel that visa was affirmed by the Tribunal (differently constituted) on 8 August 2017. As such, Wai San Chan no longer is the holder of an Australian permanent residence visa and the applicant is no longer the spouse of a person who is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen. Accordingly, at the time of this decision the applicant does not continue to meet the requirements of cl.820.211(2) or any of the alternate criteria in cl.820.211. As such, the applicant does not meet the criteria in cl.820.221(2). There is no information before the Tribunal which would indicate the applicant meets any of the alternate criteria in cl.820.221.

22. On the evidence before the Tribunal the requirements of cl.820.221 are not met.

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

    DECISION

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

    Hugh Sanderson
    Member