Mirecki (Migration)

[2019] AATA 3718

Mirecki (Migration) [2019] AATA 3718 (20 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Piotr Eugeniusz Mirecki

CASE NUMBER:  1903657

HOME AFFAIRS REFERENCE(S):           BCC2018/1218122

MEMBER:Ann Duffield

DATE:20 June 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 20 June 2019 at 9:59am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – sponsorship withdrawn – no evidence provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 (the Act).

2. The applicant applied for the visa on 14 March 2018 on the basis of his relationship with his 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 (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 or 820.221 because the sponsor withdrew her sponsorship of the applicant as they were no longer in a committed, ongoing or exclusive spousal relationship.

4. The Tribunal wrote to the applicant on 10 May 2019 inviting him to respond to information that he and the sponsor were no longer in the required relationship and that his sponsoring partner had withdrawn her sponsorship. The applicant was informed that the information was relevant as it may form the basis of the Tribunal’s decision to affirm the decision under review. The Tribunal asked that the applicant’s response be received by 24 May 2019. The applicant was informed that if he did not respond, the Tribunal would proceed to make a decision on the basis of the information before it.

5. On 24 May 2019 the applicant, through his representative, wrote to the Tribunal seeking an extension of time to respond as the applicant was “currently having a discussion with his partner about their joint future”. The Tribunal granted an extension until 7 June 2019.

6. As at the time of this decision the Tribunal has not received any further information or communication with the applicant or his representative.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The criteria that must be met for a subclass 820 visa to be granted are set out in Part 820 of Schedule 2 to the Regulations and include 820.211 and 820.221.

9. Relevantly to this matter, cl.820.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820/801 visa application as the spouse or de facto partner of the applicant.

10. In the present case the sponsor has withdrawn their sponsorship (Folio 31 of the Department of Home Affair’s file) and there is no evidence before the Tribunal that the applicant meets any of the exceptions pursuant to cl.820.221(1)(b), (2) and (3). These exceptions allow for the sponsorship requirements to be waived if the sponsor has died, or family violence has occurred, or if there is a child involved in relation to whom the applicant and the sponsor both have certain obligations.

11. 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 exceptions to these requirements.

12. There is therefore no evidence before the Tribunal that the applicant continues to be the spouse or the de facto partner of the sponsor or that the sponsorship is continuing. 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.

13. Given these findings the Tribunal is not satisfied that the applicant meets any of the criteria specified in cl.820.221.

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

    DECISION

15. 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).