Pholgrai (Migration)

[2021] AATA 3807

Pholgrai (Migration) [2021] AATA 3807 (29 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Suphak Pholgrai

CASE NUMBER:  2000890

HOME AFFAIRS REFERENCE(S):          BCC2017/3515127

MEMBER:Russell Matheson

DATE:29 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 29 September 2021 at 9:56am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – spouse or de facto partner – relationship ended and sponsorship withdrawn – no response to tribunal’s invitation to provide information or evidence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C(1), 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 820.221(2)(c), 820.221(1)(a)

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. On 26 September 2017, the applicant applied for the visa. The application was based on her partner relationship with her sponsor (the sponsor/sponsoring partner).

3. On 16 January 2020, the delegate refused to grant the visa. The delegate found that the applicant, at the time of decision, was not the spouse or the de facto partner of the sponsor. Therefore, the applicant did not satisfy cl.820.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Act.

4. On 19 January 2020, the Tribunal received a valid application for review from the applicant.  She did not provide the Tribunal with a copy of the delegate’s decision record.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration all the evidence in the Department’s case file and the Tribunal’s case file. The applicant has not provided any 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. 

6. On 21 July 2021, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act. The applicant was invited to provide information in writing to indicate whether she continued to be the spouse of the sponsoring partner, or, alternatively, to provide any evidence relevant to any of the exceptions which would allow the grant of the visa. The applicant was invited to provide the information by 4 August 2021. The Tribunal has not received a response to that invitation as at the time of this decision.

7. The Tribunal is satisfied that the applicant was sent an invitation to provide information under s.359(2) of the Act. The invitation, dated 21 July 2021, was sent to the last email address for service provided by the applicant in connection with the application for review. 

8. Where an applicant is invited to provide information under s.359(2) of the Act and fails to provide that information 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 (s.359C(1)). In these circumstances, the applicant is not entitled to appear before the Tribunal (s.360(3) and s.363A). 

   FINDINGS 

9. The Tribunal finds that the applicant did not provide the information within the prescribed period. The Tribunal waited approximately a further seven weeks from the expiry of the prescribed period and no further response was received from the applicant. The Tribunal decided, in this case, to 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. 

10. The evidence in the delegate’s decision record is that on 20 September 2019, the sponsor notified the Department that he had withdrawn his sponsorship and his relationship with the applicant had ceased. On 23 September 2019 the Department wrote to the applicant inviting the applicant to comment on the advice that the relationship had ceased and was also given the opportunity to withdraw the application. To date, the Department has not had any further contact with the applicant. The applicant has not provided any evidence or alternative claim or evidence that she continues to be sponsored for the visa to the Tribunal.

11. Clauses 820.211(2) and 820.221 of Schedule 2 to the Regulations 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 and the applicant is sponsored. The evidence in this case is that the parties’ relationship has ceased. There is no evidence that the applicant continues to be sponsored by the sponsoring partner nor has she provided any evidence that she satisfies cl.820.221 of Schedule 2 to the Regulations.

12. The Tribunal finds that the applicant is no longer sponsored by the sponsoring partner. Therefore, the applicant does not meet cl.820.211(2)(c) as required by cl.820.221(1)(a) of Schedule 2 to the Regulations.

13. The applicant may satisfy cl.820.221 by meeting the requirements of cl.820.221(3) of Schedule 2 to the Regulations. These prescribe certain circumstances in which an applicant may continue to be considered for the grant of the visa 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 she believed may be relevant to these exceptions. No response was received from the applicant and no claims have been made.

14. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria in cl.820.221(3) of Schedule 2 to the Regulations. The Tribunal finds that the applicant does not meet the alternative criteria in cl.820.221(3) of Schedule 2 to the Regulations.

15. There is no evidence or suggestion before the Tribunal that the applicant meets any of the other alternative criteria for the grant of the visa.   

16. This decision is a synopsis of the evidence before the Tribunal.  The Tribunal considered the evidence individually and as-a-whole. The Tribunal is not satisfied at the time of decision that the applicant continues to be sponsored for the grant of the Subclass 820 partner visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa.

17. Accordingly, for the reasons above, the applicant cannot satisfy the criteria in cl.820.221 of Schedule 2 to the Regulations.

    DECISION

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

    Russell Matheson
    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).