Tran (Migration)

[2023] AATA 1421

Tran (Migration) [2023] AATA 1421 (2 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Truc Anh Tran

CASE NUMBER:  1931057

HOME AFFAIRS REFERENCE(S):          BCC2018/4834764

MEMBER:Margie Bourke

DATE:2 May 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 02 May 2023 at 11:57am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – relationship with the visa applicant had ceased – no further information, evidence or submissions was provided by the applicant to the Tribunal – applicant has not made a valid claim for family violence as per the Regulations – decision under review affirmed    

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 (Cth) (the Act).

2. The applicant applied for the visa on 2 November 2018 on the basis of her relationship with her sponsor. 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 (Cth) (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 cl.820.211 and cl.820.221 because the delegate was not satisfied that the applicant was the spouse or de facto partner of the sponsor, prior to the relationship ceasing.

4. The applicant was invited to attend a hearing on 17 May 2023. The hearing invitation was sent to the applicant’s nominated representative by email on 18 April 2023. That nominated representative advised the Tribunal on 19 April 2023 that she was no longer acting for the applicant or working for the firm Jack Ta & Associates. The applicant contacted the Tribunal by telephone on 19 April 2023 to advise she had appointed a new representative. The Tribunal provided a courtesy copy to the applicant at her personal email address of the hearing invitation. The applicant provided updated change of contact details forms to the Tribunal.

5. On 21 April 2023 the applicant sent an email to the Tribunal advising she will not be attending the hearing, and consented to a decision being made on the papers. The applicant also provided a signed hearing response form dated 21 April 2023 recording that she would not be attending the hearing, and that she consented to the Tribunal proceeding to make it a decision on the information available to it without taking any further steps for the applicant to appear before it.

6. The Tribunal wrote to the applicant at her newly provided contact details on 21 April 2023, confirming it had received her consent to the Tribunal deciding the review without her appearing before it. The Tribunal advised the applicant the hearing had been cancelled, and it would proceed to make a decision on the information available to it.

7. The following are the written reasons that the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DE FACTO cl.820.221

   Relevant information and circumstances at the time of decision

8. The Tribunal has determined that it is appropriate to make a decision in this review in relation to the time of decision criteria alone. The Tribunal is cognisant that it is making a decision on the information available to it without hearing any oral evidence from the review applicant.

9. The Tribunal has not assessed the information in relation to whether the applicant was the spouse or de facto partner of the sponsor at the time of application. The Tribunal has made its decision in this review in relation to the information applicable to the time of decision.

10. Clause 820.221 requires that at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen, or meets the alternative requirements. In the present case the applicant lodged an application for the visa sponsored by an Australian citizen.

11. The review applicant applied to the Tribunal online on 1 November 2019 for review of the Department’s decision record. The review applicant provided the Tribunal with copies of the Department’s decision record and notification letter, both dated 28 October 2019. The review applicant has not provided any submissions, evidence or information to the Tribunal relevant to the review. The Tribunal has received correspondence from the review applicant, in relation to Medicare letter requests, and Tribunal processes.

12. In the Department’s decision record, dated 28 October 2019 the delegate records that the applicant has claimed to be the victim of family violence but the family violence claim has not been considered as the delegate was not satisfied that the applicant met the requirements of being the spouse of the sponsor. The delegate records in the Department’s decision record that the relationship between the applicant and sponsor had ceased.

13. On 15 March 2019 the review applicant’s representative wrote to the Department confirming they were appointed to act on behalf of the applicant. The review applicant’s representative advised the Department that they were instructed by the applicant that her relationship with the sponsor had broken down, and the applicant wished to be assessed under the family violence provisions. The representative advised that the applicant would be assessed by psychologist and a social worker in the next few weeks and the reports would be provided to the Department once they were received by the representative.

14. The Tribunal made enquiries of the Department to ensure that the Department had not received information from the applicant that had not been provided to the Tribunal. The Tribunal is satisfied that no further information, evidence or submissions was provided by the applicant to the Department. The Tribunal is satisfied that no further information, evidence or submissions was provided by the applicant to the Tribunal. No information has been provided to or received by the Tribunal in support of any claim that the applicant meets the family violence evidentiary requirements.

15. The Tribunal is satisfied that the applicant advised the Department on 15 March 2019 the relationship between herself and the sponsor had ceased. The Tribunal is satisfied that the applicant has not provided any information, submissions or evidence to the Department or to the Tribunal that the advice she provided through her representative on 15 March 2019 was not correct.

16. The Tribunal is satisfied on the information available to it that the relationship between the applicant and the sponsor had ceased by 15 March 2019.

    Criteria to be met at time of decision

17. Cl.820.221(1) requires that an applicant continues to meet the requirements of cl.820.211(2), (5), (6), (7), (8) or (9), or meets the alternative requirements of subclause 820.221(2) or (3), at the time of decision.

18. As the Tribunal is satisfied based on information before it that the relationship between the applicant and the sponsor has ceased at the time of this decision, the applicant does not continue to meet the requirements of any of the sub paragraphs of cl.820.211 at the time a decision.

19. There is no evidence before the Tribunal that the sponsor has died. The Tribunal is satisfied that the applicant does not continue to meet the requirements of cl.820.211(2), (5) or (6), although the relationship are ceased, because of the death of the sponsor. Therefore, the applicant does not meet the alternative requirements of cl.820.221(2) at the time of decision, that the applicant would continue to meet the requirements of cl.820.211(2), (5) or (6) except that the sponsor has died.

20. The applicant in the email from her representative dated 15 March 2019 indicated she wished to be assessed under the family violence provisions. The applicant has not provided information, submissions or documents to either the Department or the Tribunal that the applicant claims to meet the evidentiary requirements that the applicant suffered relevant family violence.

21. The applicant has not provided any information or submissions that she has custody or joint custody, or access to, or a residence order or contact order made under the Family Law Act 1975 relating to at least one child in respect of whom the sponsoring partner has been granted joint custody or access by a court, or has a residence order or a contact order made under the Family Law Act 1975, or has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

22. Therefore based on the information before it, the Tribunal is not satisfied that the applicant meets the alternative requirements of cl.820.211(3) at the time of decision that the applicant would continue to meet the requirements of cl.820.211(2), (5) or (6) except that the relationship has ceased and that the applicant has suffered family violence committed by the sponsor, or that the applicant and the sponsor have relevant obligations in respect of a child.

23. For the above reasons the Tribunal is satisfied that based on the information available to it, the applicant does not meet the requirements of cl.820.221(1), (2) or (3) at the time of decision.

24. Therefore, the applicant does not meet the requirements of cl.820.221.

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

    DECISION

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

    Margie Bourke
    Member