Saini (Migration)

[2020] AATA 2831

Saini (Migration) [2020] AATA 2831 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rahul Saini

CASE NUMBER:  1926788

HOME AFFAIRS REFERENCE(S):          BCC2016/2699011

MEMBER:Helena Claringbold

DATE:28 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 28 May 2020 at 3:20pm

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 –applicant failed to provide requested information within the prescribed period – relationship has ceased– applicant is no longer sponsored by the sponsoring partner– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221

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 Home Affairs (the Department) to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. On 15 August 2016, the applicant applied for the visa. The application was based on her partner relationship with her sponsor (the sponsor/sponsoring partner).

3. On 11 September 2019, 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 23 September 2019, the Tribunal received a valid application for review from the applicant.  She provided 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 23 April 2020, 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 7 May 2020. 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 23 April 2020, was sent to the last address for service provided by the applicant in connection with the application for review. 

8. Where an applicant is invited to provide information section 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 21 days 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 1 August 2019, the applicant notified the Department that her relationship with the sponsor had ceased and that the applicant and the sponsor would be applying for a divorce. The applicant has not provided any evidence or alternative claim or evidence that she continues to be sponsored for the visa.

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 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.

    Helena Claringbold
    Member