Todo (Migration)

[2024] AATA 463

Todo (Migration) [2024] AATA 463 (10 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alexandre Francois Joseph Todo

CASE NUMBER:  2204325

HOME AFFAIRS REFERENCE(S):          BCC2020/1756099

MEMBER:Stephen Conwell

DATE:10 January 2024

PLACE OF DECISION:  Perth

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

Statement made on 10 January 2024 at 11:03am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 – relationship with the visa sponsor has ceased – not satisfied that the applicant is the spouse or a de facto partner of the sponsoring spouse – applicant returned to home country – applicant failed to provide the requested information – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 359, 360, 363
Migration Regulations 1994, r 1.09, Schedule 2, cl 100.221

CASES

Hasran v MIAC [2010] FCAFC 40

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 on 21 March 2022 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (the applicant) applied for the visa on 17 June 2020 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

4. The delegate in this case refused to grant the visa on the basis that the relationship between the applicant and sponsor has ceased and that there was no evidence that the applicant met any of the exceptions in cl.100.221.

5. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. On 26 September 2023 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to provide further information in support of his claims that he and the sponsor continued in a genuine spousal or de facto relationship or alternatively that one of the statutory exemptions apply which would allow for the visa application to proceed. A response was required by 10 October 2023. The applicant responded by email before the due date stating that he had since returned permanently to France without the sponsoring partner. The response did not address any of the information sought by the Tribunal.

7. Where an applicant is invited to provide further information in accordance with subsection 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 359C(1) of the Act. In these circumstances, the applicant is not entitled to appear before the Tribunal in accordance with subsection 360(3) of the Act. Of note, the effect of section 363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40. After due consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the parties’ relationship has ceased and if so, whether any of the statutory exemptions apply, which would allow for the visa application to proceed.

   Relevant Law

10. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, amongst other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case the applicant claims to be the de facto partner of the sponsor, as defined in s.5CB of the Act.

11. A person can be granted a visa if the relationship has ceased and certain circumstances exist.

    Are the requirements for a spousal relationship met?

12. According to the decision record the applicant was granted the temporary Partner visa (subclass 309) on 18 November 2020 on the basis of his relationship with his sponsor. He arrived onshore shortly thereafter.

13. On 6 October 2021 the Department was informed that the relationship had ceased. The Department wrote to the applicant on 15 November 2021 seeking his comments regarding the relationship breakdown. No reply was received by the Department. The Department wrote again to the applicant on 16 December 2021. Again there was no response from the applicant.

14. Having regard to the evidence before it, including the applicant’s response to the Tribunal dated 29 September 2023, the Tribunal is not satisfied that at the time of this decision any of the factors set out in r. 1.09A (which help determine whether a de facto relationship exists) are met. In particular, the Tribunal is not satisfied that the applicant and the sponsor continue to have a joint household or share domestic responsibilities. The Tribunal is not satisfied they share finances or pool their resources. The Tribunal is not satisfied the applicant and the sponsor continue to represent themselves to others as being in a relationship or that they socialise together. The Tribunal is not satisfied they view the relationship as a long-term one or have a mutual commitment to the relationship. The Tribunal is not satisfied that the applicant is the spouse or a de facto partner of the sponsoring spouse. The Tribunal is not satisfied he meets cl. 100.221(2) and (2A).

15. The applicant did not seek to claim that any of the statutory exceptions applied to his circumstances. There is no evidence before the Tribunal to indicate that the sponsoring partner had died thus the Tribunal is not satisfied the applicant meets cl. 100.221(3).

16. The Tribunal finds no evidence that family violence has occurred. There is no evidence that the applicant has custody, joint custody, access, residence or contact orders under the Family Law Act 1975 in relation to any child. The Tribunal is therefore not satisfied the applicant meets cl. 100.221(4).

17. There is no evidence the Tribunal had remitted the decision thus the applicant does not meet cl. 100.221(4A).

18. Consequently the Tribunal is not satisfied the applicant meets cl. 100.221.

19. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

    Stephen Conwell
    Member