Sanaee (Migration)

[2018] AATA 1615

Sanaee (Migration) [2018] AATA 1615 (21 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Mah Gul Sanaee

VISA APPLICANT:  Mr Mohammad Raza

CASE NUMBER:  1602436

DIBP REFERENCE(S):  OSF2016/080159 OSF2013/019725

MEMBER:Justin Owen

DATE:21 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 21 May 2018 at 1:39pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse Provisional) – Review applicant no longer an Australian permanent resident – Illegible to sponsor the visa applicant – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 359A , 375A
Migration Regulations 1994, Schedule 2 cls 309.211, 309.221, 309.225

REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 February 2016 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 30 January 2013 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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. Relevantly to this matter the primary criteria include cl.309.221 of Schedule 2 to the Regulations.

3. The delegate refused to grant the visa on the basis they were not satisfied the visa applicant had met cl.309.225 which requires the applicant to satisfy the delegate they meet all Public Interest Criteria specified against the clause.  The delegate was not satisfied the applicant met Public Interest Criteria 4020 as there was no evidence before the delegate that the visa applicant met the identity requirements. 

4. Clauses 309.211(2) and 309.221 relevantly require that at the time the visa application was made, and at the time of decision the visa 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).

6. 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. 

7. On 4 May 2018 the Tribunal wrote to the review applicant pursuant to sections 359A and 359(2) of the Act inviting her to comment on or respond to information that the review applicant’s subclass 155 (Five Year Resident Return) visa had been cancelled by the delegate on 19 October 2017, and as such she did not currently hold a Permanent visa and was no longer an Australian permanent resident. The review applicant was invited to comment on or respond to this information by 18 May 2018.

8. The Tribunal informed the review applicant that the information was relevant because it appeared that the review applicant was no longer able to satisfy the sponsorship criteria.  Under cl.309.221 the visa applicant must continue to be sponsored by an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen at the time of decision.  The Tribunal informed the review applicant that the consequence of the Tribunal relying on this information is that it could lead to a finding by the Tribunal that the time of decision criteria (cl.309.221) is not met and as a result, the Tribunal would be obliged to affirm the decision to refuse the visa applicant a subclass 309 visa.

9. The Tribunal is satisfied that the review applicant was sent an invitation to comment on information under section 359A and 359(2) of the Act. The invitation, dated 4 May 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.  No contact has been made by the applicant since the end of the prescribed period.  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 before the Tribunal that the review applicant’s subclass 155 (Five Year Resident Return) visa has been cancelled by the delegate on 19 October 2017, and given she does not currently hold a Permanent visa and is no longer an Australian permanent resident, and given the review applicant has not provided any evidence or alternative claim, the Tribunal is satisfied that at the time of decision the review applicant is not eligible to sponsor the visa applicant’s 309 visa application.

13. A certificate purportedly restricting the disclosure of certain information by the Tribunal under s375A of the Migration Act was issued by the delegate on the basis that disclosure, otherwise than to the Tribunal, of the information contained in the folios would be contrary to the public interest. The Certificate is valid. The Tribunal did not consider the material covered by the s375A certificate relevant to this case. The issue in this review is whether at the time of decision the visa applicant continues to be sponsored for the grant of the subclass 309 visa by an eligible sponsoring partner, who is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen. The material covered by the s375A certificate is not germane to that matter.

    FINDINGS     

14. The Tribunal is satisfied that at the time of decision the visa applicant does not continue to be sponsored for the grant of the subclass 309 visa by an eligible sponsoring partner who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen.

15. Accordingly, for the reasons above, the visa applicant cannot satisfy the criteria in cl.309.221. 

    DECISION

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

    Justin Owen
    Senior Member