Naumovski (Migration)

[2020] AATA 2998

Naumovski (Migration) [2020] AATA 2998 (9 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mende Naumovski

CASE NUMBER:  1935850

DIBP REFERENCE(S):  BCC2015/312640

MEMBER:Mary Urquhart

DATE:9 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 09 July 2020 at 9:54am

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship ceased and sponsorship withdrawn – no substantive response to tribunal’s invitation to provide information – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cll 801.211, 801.221

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 Immigration on 2 December 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 27 January 2015 on the basis of his relationship with his sponsor. 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.

3. On 18 July 2019 the sponsor advised the Department that the relationship had ceased and the sponsorship withdrawn.

4. Where a relationship has ceased and/or sponsorship has been withdrawn, legislation provides for the grant of a permanent visa in certain limited circumstances. Those circumstances are

   ·the death of the sponsor (subclause 820.221(2)), or

   ·where it is assessed that the applicant and/or a dependent child of the sponsoring partner or of the applicant or of both of them has suffered family violence committed by the sponsoring partner; (subclause 820.221(3)(b)(i)), and/or

   ·the applicant and sponsor have custody or joint custody of, or access to at least one child and have shared rights and obligations towards that child (subclause 820.221(3)(b)(ii)).

5. The file reveals that on 2 August 2019 the applicant was requested to provide further information. The applicant responded on 29 August 2019 and on 29 August 2019  sought an extension of time in which to comment or provide information. An extension was granted until 9 September 2019.

6. On 3 October 2019 the file reveals that the applicant was contacted and a further extension of time granted until 10 October 2019. No response was received.

7. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the sponsorship was withdrawn, and the applicant did not meet the alternative criteria.

8. The applicant sought a review.

9. On 27 April 2020 and on 27 May 2020 the Tribunal wrote to the applicant inviting the applicant to provide information and to do so by 11 May 2020 and by 9 June 2020 respectively.

10. The applicant did not respond.

11. The applicant must at the time of decision satisfy cl.820.221 which requires that the applicant continue to satisfy the sponsorship requirements contained in cl. 820.211, that is that they continue to be sponsored by their spouse or de-facto partner, or if the applicant is no longer in a spousal relationship with their sponsor that they satisfy cl. 820.221(2) or (3). The Tribunal has no discretion to waive or vary the sponsorship requirement contained in cl.820.221.

12. The Tribunal notes the sponsor informed the department on 18 July 2019 that the sponsorship was withdrawn as the relationship had ceased. The applicant has been provided with numerous opportunities to respond to the limited circumstances where a visa may be granted where sponsorship has ceased. The applicant has not availed themselves of such opportunity.

13. There is no evidence before the Tribunal that the sponsor is deceased and therefore it finds that the applicant does not meet cl.820.221(2).

14. There is no evidence before the Tribunal that family violence has occurred and therefore it finds that the applicant does not meet cl.820.221(3)(b)(i).

15. There is no evidence before the Tribunal that there is a child of the relationship, that there are court orders or responsibilities for any child and it finds that cl. 820.221(3)(b)(ii) is not applicable.

16. The evidence before the Tribunal indicates that at the time of this decision the applicant is not sponsored as required by cl.820.221 (1).

17. For these reasons the Tribunal finds that the applicant cannot satisfy cl.820.221 and does not meet the requirements for the grant of a subclass 820 visa.

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

    DECISION

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

    Mary Urquhart
    Member