Muenkrai (Migration)

[2024] AATA 3898

Muenkrai (Migration) [2024] AATA 3898 (26 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ruechakorn Muenkrai

CASE NUMBER:  2213694

HOME AFFAIRS REFERENCE(S):          BCC2020/2792787

MEMBER:David Barker

DATE:26 September 2024

PLACE OF DECISION:  Sydney

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

Statement made on 26 September 2024 at 3:14pm

CATCHWORDS 
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – relationship ceased – applicant did not provide the information requested within the period allowed – withdrew their sponsorship – applicant is no longer in a  spousal relationship with his sponsoring partner – decision under review affirmed    

LEGISLATION
Migration Act 1958, ss 5, 65, 359, 360
Migration Regulations 1994, Schedule 2, cl 820.221

CASES
He v MIBP [2017] FCAFC 206

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 31 August 2022, 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 10 December 2020 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 (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.820.221 because the relationship with his sponsor had ceased and there was no evidence that his sponsor had died, committed relevant family violence or had a child with the applicant.

4. On 5 May 2023 the tribunal sent the applicant an outreach email, sent to the last address provided in connection with the review, noting that the tribunal’s records show that he had departed Australia and requested confirmation as to whether he wished to continue with, or withdraw the review application.   The email also requested that the applicant, if required, update their contact details. No response was received to this correspondence.

5. On 2 September 2024, the Tribunal wrote to the applicant, care of their authorised representative / authorised recipient, pursuant to s 359(2) of the Act, inviting the applicant to provide information in writing that may indicate that they are the spouse or de facto partner of the sponsoring partner at present, or alternatively, any information that the applicant believes maybe relevant to the exceptions. By way of explanation, the letter explained that it is a requirement for the grant of the visa that at the time of visa application, and at the time of the decision, the applicant is the spouse or de facto partner of the sponsoring partner, unless one of the exceptions applies. If the applicant is no longer in a relationship, there are exceptions under which they can be granted the Partner visa. These include:

   ·The death of the sponsoring partner

   ·Family violence

   ·Certain court orders or responsibilities in relation to children.

6. The invitation was sent to the last address provided in connection with the review and advised that, if information was not provided in writing by 16 September 2024, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The applicant did not provide the information requested within the period allowed. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

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

   BACKGROUND

9. The applicant is a citizen of Thailand and is 35 years old.

10. Their sponsor is an Australian citizen by birth and is 71 years old.

11. On his visa application form the applicant stated that the parties met on 24 August 2020 in South Yara, Victoria. The parties were married on 26 November 2020 in Fairfield, Victoria.

12. On 19 June 2022, the sponsor, by way of a ‘Notification of changes in circumstances form’, advised the Department of Home Affairs (the Department) that that the parties had separated on 18 June 2022 and that the sponsor had commenced divorce proceedings and that the relationship had  eased.  This was followed, on 20 June 2024, by an email from the sponsor indicating their wish to withdraw sponsorship for the applicant’s Partner visa application.

13. On 15 July 2022, the Department sent the applicant a  natural justice letter informing him that the Department had received information that the relationship between the applicant and his sponsoring partner had ended and that the sponsor has withdrawn their sponsorship. The letter informed the applicant of the consequences of his no longer being in a relationship with the sponsoring partner and about the circumstances in which the application  for the Partner visa could continue despite the relationship ending.

14. The Department received a response from the applicant on 12 August 2024 in which he provided his perspective on circumstances leading up to the breakdown of the parties’ relationship.  In comments made by the applicant he did not contest the sponsor’s claim that the relationship had ceased and made no claim to have been a victim of family violence perpetrated by the sponsor during the period the parties were in a relationship.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant continues to have a sponsor with a sponsorship which is approved by the Minister and still in force.

    Is the applicant sponsored?

16. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(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).

17. Clause 820.221 provides for time of decision criteria and relevantly states:

    820.221 

    (1)  In the case of an applicant referred to in subclause 820.211(2), (5), (6), (7), (8) or (9), the applicant either:  

    (a)  continues to meet the requirements of the applicable subclause; or 

    (b)  meets the requirements of subclause (2) or (3).

    (2)  An applicant meets the requirements of this subclause if the applicant:  

    (a)  would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the sponsoring partner has died; and

    (b)  satisfies the Minister that the applicant would have continued to be the spouse or de facto partner of the sponsoring partner if the sponsoring partner had not died.

    (3)  An applicant meets the requirements of this subclause if: 

    (a)  the applicant would continue to meet the requirements of subclause 820.211(2), (5) or (6) except that the relationship between the applicant and the sponsoring partner has ceased; and 

    (b)  either or both of the following circumstances applies:

    (i)  either or both of the following:

    (A)  the applicant;

    (B)  a dependent child of the sponsoring partner or of the applicant or of both of them;

    has experienced family violence committed by the sponsoring partner;

    (ii)  the applicant:

    (A)  has custody or joint custody of, or access to; or

    (B)   has a residence order or contact order made under the Family Law Act 1975 relating to;

    at least 1 child in respect of whom the sponsoring partner:

    (C)  has been granted joint custody or access by a court; o

    (D)  has a residence order or contact order made under the Family Law Act 1975; or

    (E)  has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

18. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 820.221.

19. At the time of application the applicant was sponsored by the sponsor, who at that time was over the age of 18 years and an Australian citizen. On the basis of these facts the Tribunal finds the provisions in cl.820.211 were met at the time of application.

20. The sponsor, subsequently by way of a letter dated 19 June 2022 notified the Department that their relationship with the applicant had ceased and that they withdrew their sponsorship for his Partner visa application. The applicant has provided no evidence and made no contentions which would demonstrate the relationship with the sponsor did not cease as they have claimed, or that they have subsequently reconciled.

21. The Tribunal finds that the applicant is no longer in a  spousal relationship with his sponsoring partner. As a consequence, the applicant does not satisfy the requirements of cl 820.221(1)(a), which required he continue to meet cl 820.211(2)(c), namely that he is sponsored by his spouse or de facto partner.

22. There is no evidence before the Tribunal that the sponsor is deceased and as a consequence the provisions of cl 820.221(2) are not met. There is also no evidence or claim that there is a child of the relationship, or that a dependent child of the sponsor or of the applicant or of both of them has experienced family violence committed by the sponsor. Accordingly, the provisions of cl 820.221(3) are not met.

23. In the circumstances of this matter, the Tribunal finds that the relationship between the applicant and his sponsoring partner has ceased and that sponsorship has been withdrawn for his application for a Subclass 820 Partner visa. Further to this, the Tribunal finds that none of the exceptions  to the sponsorship requirements which are provided for in cl 820.221 exist.

24. On the evidence before the Tribunal the requirements of cl 820.221(1)(a), cl 820.221(2) and  cl 820.221(3) are not met.

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

    DECISION

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

    David Barker
    Member