Tamleht (Migration)

This matter concerned an appeal by an applicant for a Partner (Residence) (Class BS) visa, subclass 801, against the Tribunal's decision to affirm the refusal of their visa application. The applicant had been granted a Subclass 820 visa in November 2010, but their application for the Subclass 801 visa was refused in April 2015. The core of the dispute revolved around whether the applicant continued to meet the criteria for the Subclass 801 visa, particularly in light of the cessation of their relationship with the sponsoring partner.

The legal issues before the Tribunal were whether the applicant satisfied the requirements of clause 801.221 of the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant was the spouse or de facto partner of the sponsoring partner at the time of the decision, as required by clause 801.221(2)(c). The Tribunal also considered whether any of the exceptions to this requirement, outlined in clauses 801.221(5) and 801.221(6), were applicable, such as the death of the sponsor, family violence, or shared custody of a child.

The Tribunal's reasoning was based on the applicant's own evidence provided in April 2016, where they stated that their relationship with Ms Dhamu had ceased in 2013, that Ms Dhamu was alive, that they were not a victim of family violence, and that there were no dependent children of the relationship. Given the applicant's failure to appear at the hearing and respond to an invitation to attend, the Tribunal relied on this prior evidence. This evidence led the Tribunal to conclude that the applicant did not meet the requirement of being the spouse or de facto partner of the sponsoring partner at the time of the decision, nor did they satisfy any of the prescribed exceptions.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Partner (Residence) (Class BS) visa, finding that the applicant did not meet the requirements of clause 801.221 and therefore did not satisfy the criteria for the grant of the visa.