Sunastra (Migration)

[2019] AATA 3991

Sunastra (Migration) [2019] AATA 3991 (23 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr I Putu Sunastra

CASE NUMBER:  1822078

HOME AFFAIRS REFERENCE(S):           BCC2016/3812037

MEMBER:Mary Urquhart

DATE:23 August  2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211 of Schedule 2 to the Regulations

·cl.820.221(1) of Schedule 2 to the Regulations

Statement made on 23 August 2019 at 11:33am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – relationship ceased – sponsorship withdrawn – child of the relationship – birth certificate – results of DNA testing – shared rights and obligations towards the child – decision under review remitted

LEGISLATION  
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 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 14 November 2016 on the basis of his relationship with his sponsor an Australian citizen, Anak Agung Jessica Suastika, who lodged a sponsorship in support of the application. At that time, Class UK contained only one subclass: Subclass 820 (Partner). 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy d.820.211.

4. Under migration law, an application is made for a class of visa and the application must be considered against the criteria for all subclasses within that visa class. There are two visas that the applicant applied for and each of those visas has only one subclass:

   ·Partner (Temporary) (Class UK) Subclass 820;

   ·Partner (Residence) (Class BS) Subclass 801.

5. A (primary) applicant must, at time of application, satisfy regulation 820.211 by meeting the requirements of at least one of subclauses (2), (5), (6), (7), (8), or (9).

6. The delegate records that they considered subclauses (5), (6), (7), (8), and (9) of clause 820.211 and found that the applicant’s circumstances do not fall within those provisions. As a consequence it was found that he therefore did not satisfy them.

7. Subclause (2) of clause 820.211 requires the applicant at time of application, is the spouse or de facto partner of the sponsoring spouse. The definition of spouse and de facto partner is given in section SF and 5CB respectively and attached.

8. At the time of application, the applicant claimed to be the de facto partner of his sponsor. The delegate records that the applicant provided limited evidence to support this claim.

9. Although the delegate did not assess whether the applicant was in a the de facto partner (as defined) with the sponsor at the time of application,  they considered that subclause (2) is applicable to the applicant’s circumstances, for the purposes of deciding time of decision criteria

   Criteria to be satisfied at time of decision

10. 820.211 provides

    (1) The applicant:

    is not the holder of a Subclass 771 (Transit) visa; and

    meets the requirements of subclause (2), (5), (6), (7), (8) or (9).

11. At time of decision the applicant must continue to meet the requirement that he is the spouse or de facto partner of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen.

12. On 26 March 2018 the applicant advised the Department that his relationship with his sponsor had ceased, and that he wished to remain in Australia so that he could maintain a relationship with his child.

13. On 5 April 2018 the Department wrote sent a letter to the applicant containing information concerning the criteria that must be met to continue with the application. The applicant was also requested amongst other things, to provide a birth certificate for the claimed child of the relationship. The letter gave a prescribed period to provide a response.

14. The Department file reveals that on 6 April 2018, the Department received an email from the applicant’s nominated email account stating:

    “Yes we will be doing those documents and will upload them to Putu's immi account ASAP.”

15. The file reveals that the applicant provided some of the requested information to the Department (such as health and character documents), however, and significantly at the time of the delegate’s decision on 23 July 2018, the applicant had not  provided a birth certificate for the child he claims to have fathered with the sponsor.

16. The applicant appeared before the Tribunal on 27 May 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

17. Prior to the hearing the Tribunal received further documentation from the applicant including a Birth Certificate for the claimed child.

18. On 29 May 2019 the Tribunal invited the applicant to provide DNA evidence regarding the claimed biological relationship between the applicant and his claimed child.

    Post Hearing

19. On 5 July 2019 the Tribunal  received the results of DNA testing in relation to the applicant’s son. The report concludes that  is the biological father of Putu Kayden Daniel Sunastra, the applicant’s claimed son.

20. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The delegate refused to grant the visa on the basis that the applicant did not meet cl.820.221 because the sponsor had withdrawn his sponsorship and there was no evidence that the applicant met any of the alternatives in the relevant clause.

22. The Tribunal finds on the basis of the applicant’s evidence that the applicant is no longer the de facto partner of his sponsor, and so does not meet sub clause 820.221(1)(a).

23. Where the relationship has ceased and/or sponsorship has been withdrawn, legislation provides for the grant of a permanent visa in certain limited circumstances. Those circumstances are

    ·the death of the sponsor (sub clause 820.221(2)), or

    ·where it is assessed that the applicant and/or a dependent child of the sponsoring partner or of the applicant or of both of them has suffered family violence committed by the sponsoring partner; (sub clause 820.22I(3)(b)(i)), and/or

    ·the applicant and sponsor have custody or joint custody of, or access to at least one child and have shared rights and obligations towards that child (sub clause 820.221(3) (b) (ii)).

24. The Tribunal finds there is no evidence that the sponsor is deceased. Accordingly the Tribunal finds the applicant does not meet sub clause 820.221(2).

25. The Tribunal finds there is no evidence that family violence has occurred. Accordingly the Tribunal finds the applicant does not meet sub clause 820.221 (3) (b) (i).

26. The Tribunal notes that at the time of the delegate’s decision on 23 July 2018, the applicant had not provided a birth certificate for the child he claims to have fathered with the sponsor. The Tribunal notes the delegate found for this reason that the applicant did not meet any of the alternatives in the relevant clause.

27. Since then the applicant has provided the Tribunal with a Birth Certificate as evidence that there is a child of the relationship and the applicant has been confirmed by biological parentage testing as the father of the child. The DNA results have been provided to the Tribunal. At the hearing the applicant gave evidence in relation to the child. He gave satisfactory and therefore convincing evidence that he and his former partner share responsibility for the child jointly. After careful assessment of all of the evidence the Tribunal is satisfied that the applicant meets sub clause 820.221(3).

28. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

29. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl.820.211 of Schedule 2 to the Regulations

    ·cl.820.221(1) of Schedule 2 to the Regulations

    Mary Urquhart
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 sub regulation (3).

    (3)The matters for sub regulation (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 in a de facto relationship with 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 sub regulation (2), the Minister may consider any of the circumstances mentioned in sub regulation (3).