Tamleht (Migration)

[2018] AATA 661

Tamleht (Migration) [2018] AATA 661 (13 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andres Tamleht

CASE NUMBER:  1716110

DIBP REFERENCE(S):  CLF2010/60015 CLF2012/229914

MEMBER:Christine Kannis

DATE:13 March 2018

PLACE OF DECISION:  Perth

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

Statement made on 13 March 2018 at 10:44am

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801 – Federal Court remittal – Applicant did not appear before the Tribunal – Relationship has ceased – Unable to satisfy the requirements

LEGISLATION

Migration Act 1958, ss 65, 362B, 375A, 376
Migration Regulations 1994, Schedule 2 cl 801.221

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 Immigration on 7 April 2015 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 applied for the visa on 29 April 2010 on the basis of his relationship with his sponsor, Ms Balvinder Kaur Dhamu. At that time, 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). 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.801.221.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because no information which demonstrated that the applicant continued to be the spouse of the sponsor at the time of the decision had been provided.

4. The applicant sought review of the decision to the Tribunal and on 13 April 2016 the Tribunal (differently constituted) (the first Tribunal) affirmed the decision.

5. On 13 April 2016 the first Tribunal failed to disclose the existence of s.375A and s.376 certificates on the Departmental files. Consequently on 18 July 2017 the Federal Circuit Court of Australia quashed the decision of the first Tribunal and remitted the matter to the Tribunal, directing it to reconsider and determine the matter according to law. The Court noted that that at least some of the documents subject to the certificates were relevant, or potentially relevant to the issues arising on review.

6. On 8 February 2018 the Tribunal sent the applicant an Invitation to Attend a Hearing letter which advised that a hearing had been listed for 13 March 2018 at 9.00 am. The letter informed the applicant that if he was unable to attend the hearing then he should advise the Tribunal as soon as possible. The letter advised that if he did not attend the hearing a decision may be made on the review without taking any further action to allow or enable him to appear before the Tribunal or that his application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal.

7. Prior to the second scheduled hearing, the Tribunal requested the Department to reissue/revoke the two s.376 certificates and the s.375A certificate on the basis that they were not valid.

8. The Department revoked the two s.376 certificates and the s.375A certificate.

9. On 6 and 12 March 2018 the Tribunal sent the applicant SMS hearing reminders.

10. The applicant did not respond to the Invitation to Attend a Hearing.

11. The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.

12. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under section 362B of the Act.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. Clause 801.221(1) sets out the time of decision criteria and requires an applicant to meet the requirements of subclause (2), (2A), (3),(4),(5), (6) or (8).

15. Clause 801.221(2)(c) requires the applicant to be the spouse or de facto partner of the sponsoring partner.

16. There are circumstances in which an applicant will be eligible for a Subclass 801 visa notwithstanding that the relationship between the applicant and the sponsoring partner has ceased. They are set out in cl.801.221(5) and cl.801(6).These circumstances include the death of the sponsor (cl. 801.221(5)), that the applicant and/or a dependent child has suffered family violence committed by the sponsor (cl. 801.221(6)(c)(i) or that the applicant and the sponsor have joint custody or custody or access by a court to at least one child in respect of who they have shared rights and obligations (cl .801.221(6)(c) (ii)).

17. The  relevant history of this matter is as follows:

    ·On 20 October 2009 the applicant and Ms Dhamu were married.

    ·On 15 November 2010 the applicant was granted a Subclass 820 visa.

    ·On 7 April 2015 the applicant was refused a Subclass 801 visa.

    ·On 7 April 2016 the applicant appeared before the first Tribunal and said his relationship with Ms Dhamu ceased in 2013.

    ·On 7 April 2016 the applicant told the first Tribunal that Ms Dhamu was alive, that he was not the victim of family violence and that there were no dependent children of his relationship with Ms Dhamu.

18. Given the applicant’s failure to appear at the hearing and his failure to respond to the Invitation to Attend a Hearing, the Tribunal relies on the evidence he most recently provided on 7 April 2016. Based on that evidence, the Tribunal finds that the relationship between the applicant and Ms Dhamu has ceased. Accordingly the applicant does not meet cl.801.221(2)(c).

19. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6). Clause 801.221(8) is not relevant in this matter.

20. The Tribunal is satisfied that the applicant has had reasonable opportunity to put forward any submission in respect of the above exceptions.

21. As the applicant does meet subclause (2), (2A),(3),(4),(5), (6) or (8) he cannot meet cl. 801.221(1).

22. For the reasons above, the Tribunal finds that the applicant does not meet the requirements of cl.801.221 and does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Christine Kannis
    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 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 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 subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).