Ratnayake (Migration)

[2018] AATA 992

Ratnayake (Migration) [2018] AATA 992 (22 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sapumal Chathuranga Ratnayake

CASE NUMBER:  1720089

DIBP REFERENCE(S):  CLF2013/225392

MEMBER:Kira Raif

DATE:22 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 22 March 2018 at 11:20am

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Requirement for applicant to be in continuing spousal relationship with sponsor – Relationship with sponsor ended – No evidence of reconciliation

LEGISLATION
Migration Act 1958, ss 5F, 65, 359A
Migration Regulations 1994, r 1.15A(3), Schedule 2, cl 801.221(2)(c)

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 14 August 2017 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 is a national of Sri Lanka born in April 1987. He applied for the visa on 13 September 2013 on the basis of his relationship with his sponsor. The applicant was granted the temporary Partner visa in March 2015 but the delegate refused to grant the permanent visa on the basis that the applicant did not satisfy cl.801.221 because the applicant’s relationship with the sponsor ended and the delegate was not satisfied the applicant met any of the alternative criteria for visa grant. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 13 February 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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).

5. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant.

6. ‘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 a married couple 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 about 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 visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3).

   Are the requirements for a spousal relationship met?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant sought the visa on the basis of his relationship with an Australian citizen and was granted the temporary visa in March 2015. However, in April 2017 the sponsor informed the Department that the relationship ended. The applicant was invited to comment on that information and provided a declaration in response in which he outlined the nature of his relationship and requested more time ‘to work on our problems and weaknesses and work out our marriage’. Similarly, in his declaration of 19 December 2017 in response to the Tribunal’s s. 359A correspondence the applicant outlined the circumstances of the relationship and requested more time to resolve the problems.

8. The Tribunal has considered the applicant’s submissions but nothing in the presented evidence satisfies the Tribunal that at the time of this decision, the applicant and the sponsor have a committed spousal relationship. The applicant’s evidence is that he hopes the relationship may resume in the future. That is not sufficient. What is required is that at the time of this decision, which is the relevant time for the purpose of cl. 801.221, the applicant and the sponsor have a mutual commitment to a shared life as husband and wife. There is nothing before the Tribunal to indicate that the sponsor has such a commitment or any desire to re-establish her relationship with the applicant and the applicant’s own hope that it might happen at some indeterminate time in the future is not sufficient.

9. In oral evidence to the Tribunal the applicant confirmed the relationship had ended and he said his partner had an intervention order against him. The applicant said he tried to reconcile but for a number of reasons, things did not work out. The applicant said that he wants to stay in Australia to be with his wife and to re-start the relationship after the AVO finishes. The applicant’s evidence appears to suggest that after the AVO ends, he will attempt to contact the sponsor in the hope that she wants to resume the relationship but at the time of this decision, there is nothing to suggest that the sponsor has any desire to resume the relationship or that she has any commitment to the relationship.  The Tribunal must be satisfied that the applicant meets the visa criteria at the time of the decision, not in some indeterminate time in the future. In any case, the Tribunal granted the applicant more time to pursue reconciliation but he provided no evidence at the time of this decision to indicate that he and the sponsor have reconciled.

10. There is no evidence that at present, the applicant and the sponsor continue to live together or not apart on a permanent basis or that they maintain a joint household or share housework. There is no evidence that they share their finances, have joint liabilities or jointly contribute to expenses. There is no evidence that the applicant and the sponsor continue to represent themselves to others as being in a relationship or that they socialise together or plan and undertake joint social activities. There is no evidence that at present, others believe the relationship to be a genuine one. There is no evidence that there continues to be a mutual commitment to the relationship or that the parties draw companionship and support from each other or that they view the relationship as a long term one.

11. The Tribunal is not satisfied on the limited evidence before it that at the time of this decision, the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied that at the time of this decision, the applicant is the spouse or the de facto partner of the sponsor.

12. There is no evidence before the Tribunal that the sponsor has died. There is no evidence in relation to any family violence. The applicant told the Tribunal that his partner obtained an intervention order against him but he does not suggest he has any form of protective order in relation to his partner.  The Tribunal is not satisfied that relevant family violence occurred. There are no children and no relevant court orders or responsibilities in relation to children. On the evidence before it, the Tribunal is not satisfied that the applicant meets the requirements in cl. 801.221.

13. As noted above, the Tribunal acknowledges the applicant’s evidence about the hardship that he has suffered and his desire to have a relationship with the sponsor but in the absence of any evidence that the sponsor continues to be committed to this relationship, the Tribunal is not satisfied the applicant is the spouse of the sponsor and he does not meet the key criteria for visa grant.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member