Tran (Migration)

[2019] AATA 4630

Tran (Migration) [2019] AATA 4630 (19 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Chau Thi Diem Tran

CASE NUMBER:  1724112

HOME AFFAIRS REFERENCE(S):           BCC2015/2246119

MEMBER:Adrienne Millbank

DATE:19 September 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 19 September 2019 at 12:16pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – sponsor died before application lodged – death certificate provided – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65
Migration Regulations 1994 (Cth), Schedule 2 cl 820.211(2)

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 and Border Protection 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 was born in Vietnam in 1985 and is 34 years old at the time of decision. She arrived in Australia on 7 May 2015 on a Visitor (Subclass 600) visa, and was granted a Bridging visa A in association with this application.

3. The applicant applied for the visa on 5 August 2015 based on her relationship with her intended 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 (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 refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2) because the visa applicant did not have a sponsor. No sponsorship form (Form 40SP) specifying the visa applicant’s sponsor for the purposes of the partner visa application was provided with the application. In response to the Department’s invitation to provide further information in support of the application, the visa applicant provided evidence in the form of a death certificate that her intended sponsor had passed away on 30 April 2015, approximately three months prior to the application lodgement.

5. As the visa applicant’s intended sponsor had passed away prior to the application, the visa applicant was unable to meet the requirement that she is a spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen.

6. The applicant was represented in relation to the review by her registered migration agent.

7. On 23 August 2019 the Tribunal wrote to the applicant through her representative, advising her that the Tribunal was unable to make a favourable decision on the evidence available and inviting her to attend a hearing scheduled for 11 September 2019. On 29 August 2019 the Tribunal received an email from the applicant’s representative advising that the applicant did not wish to offer further evidence and attend the hearing, for the reason that ‘this matter was originally filed into [sic] order to access the Minster for Intervention’. The applicant requested through her representative that the Tribunal ‘vacate the hearing date and make a decision on the papers as they stand’.

8. On 29 August 2019 the Tribunal responded to the applicant’s request, and agreed to make a decision on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the time of application criterion cl.820.211(2).

    Is the applicant sponsored?

11. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(a) which requires that the applicant is the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

12. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl.820.221.

13. Approval of sponsorship is subject to limitations contained in r.1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in r.1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by r.1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and r.1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

14. The applicant provided evidence that she and her intended sponsor married in Vietnam on 11 March 2015. On her application form she indicated that her intended sponsor was born in Vietnam in 1980; that her intended sponsor arrived in Australia in 1991; that he had one previous relationship, a marriage; that he had sponsored his former wife from Vietnam; and that he and his former wife divorced on 24 August 2014.

15. A copy of a Queensland Death Certificate was provided certifying that the applicant’s intended sponsor died on 30 April 2015 of ‘heroin toxicity’, in Darra, Brisbane, at the age of 34 years, having lived in Australia for 24 years.

16. In her character assessment form (Form 80), signed on 28 February 2017, the applicant declared as her reasons for further stay: ‘to look after our baby son’ and ‘to seek permanent residency in Australia’.

17. As the applicant’s intended sponsor died approximately three months before the application was lodged, she did not have a sponsor at the time of application. Therefore, the applicant does not meet cl.820.211(2)(a).

18. On the evidence before the Tribunal, the requirements of cl.820.211(2) and cl.820.221(1) are not met.

19. No claim was made or information before the Tribunal to indicate that the applicant meets the alternative sub-criteria death exceptions. The applicant does not meet cl.820.211(7) as she is not the holder of a Subclass 300 (Prospective marriage) visa who has married the sponsoring partner under a marriage that is recognised as valid for the purposes of the Act, and the sponsoring partner has died. The applicant does not meet cl.820.221(2) because she does not meet the requirements of cl.820.211(2).

20. No claim was made or information before the Tribunal to indicate that the applicant meets the other alternative sub-criteria in cl.820.211(5), cl.820.211(6), cl.820.211(8), cl.820.211(9), and cl.820.221(3).

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

    DECISION

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

    Adrienne Millbank
    Member