Moh'd (Migration)

[2022] AATA 4609

Moh'd (Migration) [2022] AATA 4609 (18 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mustafa Khader Moh'd

REPRESENTATIVE:  Mr Steve Ammar Kassem (MARN: 1685590)

CASE NUMBER:  2119410

HOME AFFAIRS REFERENCE(S):          BCC2018/761582

MEMBER:Russell Matheson

DATE:18 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 18 November 2022 at 12:51pm

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – spouse or de facto partner of the sponsor – sponsorship withdrawn – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 5, 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cl 100.211, 100.221; r 1.15

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 on 30 November 2021 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 15 February 2018 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 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. Relevantly to this matter, the primary criteria include cl.100.221 of Schedule 2 to the Regulations.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221 because the applicant was not, at the time of decision, the spouse (as defined under section 5F of the Act) or the de facto partner (as defined under section 5CB of the Act) of the sponsoring partner.   

5. The Tribunal received from the applicant a valid application for review on 17 December 2021. 

6. The Tribunal has before it the Department’s file relating to the applicant, its own file, and a copy of the Departmental decision record provided by the applicant to the Tribunal. The applicant provided no other additional evidence, or made any new claim, to the Tribunal in association with any of the criteria under consideration as part of this review. 

7. On 31 August 2022, the Tribunal wrote to the applicant pursuant to sections 359A and 359(2) of the Act inviting him to comment on or respond to information by 14 September 2022. The Tribunal has received no response to that invitation as of the date of this decision.

8. The Tribunal is satisfied that the applicant was sent an invitation to comment on information under section 359A and 359(2) of the Act.  The invitation, dated 31 August 2022, was sent to the last address for service provided by the applicant in connection with his application for review.

9. Where an applicant is invited to comment on or respond to information under section 359A and 359(2) and fails to provide those comments within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information (subsection 359C(1) and (2)).  In these circumstances, the applicant is not entitled to appear before the Tribunal (subsection 360(3) and section 363A). 

10. The Tribunal has found that the applicant did not provide comments within the prescribed period.  No request for an extension of time to provide comments was received from the applicant.  The Tribunal has waited a further month from the end of the prescribed period without any response from the applicant.  The Tribunal has decided in this case to now proceed to decide on the review without taking further action to obtain comments from the applicant and without inviting the applicant to appear before the Tribunal. 

11. Given the evidence in the delegate’s decision that the sponsor has withdrawn her sponsorship of the applicant, and given the applicant has not provided any evidence or alternative claim, the Tribunal is satisfied that at the time of decision, the applicant does not continue to be sponsored for the grant of the subclass 100 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for the visa. 

12. Clause 100.221 subclause (1) of the Regulations requires that the applicant must, at the time of decision, satisfy subclause (2), (2A), (3), (4) or (4A) of clause 100.221. Relevantly in this case, 100.221 subclause (2) requires that the applicant remains the spouse (as defined under section 5F of the Act), or de facto partner (as defined by section 5CB of the Act) of their sponsoring partner at that time.  As the sponsoring partner has withdrawn sponsorship as evidenced in the delegate’s decision record, the applicant in this case no longer continues to be sponsored for the grant of the visa by his sponsoring partner, and the applicant has not provided any evidence that he continues to satisfy cl.100.221(2)(b).

13. The applicant may satisfy clause 100.221 by meeting the requirements of at least one of subclauses (3) and (4).  These prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residency where the relationship with the sponsor has ceased. These include the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children.  The Tribunal invited the applicant to provide information he believed may be relevant to these exceptions.  No response was received, or claim has been made. The Tribunal notes that the applicant made a claim of non-judicial family violence to the Department that did not meet the statutory evidentiary requirements.  

14. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria in cl.100.211 (3)-(4). 

15. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria cl.100.211 (2A) and (4A) which relies on specific procedural scenarios that do not apply in this case.  

16. A certificate purportedly restricting the disclosure of certain information by the Tribunal under s375A of the Migration Act was issued by the delegate on the basis that discourse, otherwise than to the Tribunal, of the information contained in the folios would be contrary to the public interest. The Tribunal does not consider the Certificate is valid. The issue in this review is whether at the time of decision the applicant continues to be sponsored for the grant of the subclass 100 visa by the sponsoring partner, who is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen, who sponsored the applicant for that visa and if not, whether any of the relevant exceptions applied.

    FINDINGS     

17. The Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the subclass 100 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa.

18. Accordingly, for the reasons above, the applicant cannot satisfy the criteria in cl.100.221. 

    decision

19. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

    Russell Matheson
    Member

    
    

    Attachment  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).