Oldaker (Migration)

[2018] AATA 2206

Oldaker (Migration) [2018] AATA 2206 (14 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thomas William Oldaker

CASE NUMBER:  1729178

DIBP REFERENCE(S):  BCC2016/898519

MEMBER:Justin Owen

DATE:14 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 May 2018 at 5:56pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Whether a genuine de facto relationship exists – Department received confirmation that relationship had ended – Applicant did not respond to invitation to comment – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 65, 359(2), 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cls 820.221(2)(a), 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 14 November 2017 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 4 March 2016 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). 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 Tribunal received from the applicant a valid application for review on 22 November 2017. 

   Relevant law

4. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of decision the applicant is the spouse or de facto partner of an Australian citizen or permanent resident or eligible New Zealand citizen.

5. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other set out in r.1.15A(3).

   Are the requirements for a spousal relationship met?

6. The applicant provided to the Tribunal a copy of the primary decision record. It indicates the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.820.221 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. The decision record indicates that on 18 April 2017 the Department received formal notification from the applicant confirming that the applicant’s de facto relationship with the sponsor had ended on 18 April 2017.

7. 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. 

8. On 23 April 2018 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 7 May 2018. The Tribunal has received no response to that invitation as of the date of this decision.

9. 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 23 April 2018, was sent to the last address for service provided by the applicant in connection with her application for review.

10. 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).

11. 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 week from the end of the prescribed period without any response from the applicant.  The Tribunal has decided in this case to now proceed to make a decision on the review without taking further action to obtain comments from the applicant and without inviting the applicant to appear before the Tribunal. 

12. Given the evidence in the delegate’s decision that the applicant is no longer the spouse of the sponsor, 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 820 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for the visa. 

13. The applicant may satisfy clause 820.221 by meeting the requirements of at least one of the subclauses (2) and (3).  These prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residence where the relationship with the sponsorship 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. 

14. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria in cl.820.221 (2)-(3). 

    FINDINGS     

15. The Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the subclass 820 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa.

16. Accordingly, for the reasons above, the applicant cannot satisfy the criteria in cl.820.221. 

    DECISION

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

    Justin Owen
    Senior Member