Whotton (Migration)

[2019] AATA 2689

Whotton (Migration) [2019] AATA 2689 (10 June 2019)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Andrew Lee Whotton

CASE NUMBER:  1905030

HOME AFFAIRS REFERENCE(S):           BCC2017/3106422

MEMBER:Ann Duffield

DATE:10 June 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 10 June 2019 at 11:33am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – no response to invitation to comment on information – sponsorship withdrawn by sponsoring partner – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 on 14 February 2019 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 applied for the visa on 28 September 2017 on the basis of his relationship with his 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 or cl.820.221 of the regulations because the sponsor was no longer the sponsor of the applicant.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 4 March 2019.

5. Information on the file of the Department of Home Affairs (the Department) indicates that the applicant’s relationship with the sponsor has ended and that the sponsoring partner withdrew their sponsorship of the application on 10 January 2018. One of the requirements for the grant of the visa is that the applicant continues to be the spouse or de facto partner of the sponsor at the time of the decision, unless a specified exception to that requirement applies.

6. On 18 April 2019 the Tribunal wrote to the applicant at the contact address he provided, pursuant to s.359A and s.359(2) of the Act. On 1 May 2019 the Tribunal received a Medical Certificate dated 24 April 2019 stating that the applicant had a medical condition which would likely take 12 weeks of treatment. The Tribunal wrote to the applicant on 2 May 2019 extending his timeframe for comment until 16 May 2019.

7. The applicant was again invited to comment on or respond to the information that the relationship with the sponsor had ended and the sponsor had withdrawn their sponsorship. Further, the applicant was invited to provide information in relation to meeting the required criteria to be satisfied for the grant of the visa if they are no longer in a relationship with the sponsoring partner. The applicant was informed that if he did not respond to the Tribunal’s request within the period allowed the Tribunal may make a decision on the review without taking any further action to obtain his views on the information or to obtain the information sought. He was also informed that he would lose any entitlement to a hearing.

8. The Tribunal did not receive a response from the review applicant within the amended timeframe for response and at the time of this decision, has received no further correspondence from the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The criteria that must be met for a subclass 820 visa to be granted are set out in Part 820 of Schedule 2 to the Regulations and include 820.211 and 820.221.

11. Relevantly to this matter, cl.820.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant.

12. In the present case the sponsor has withdrawn their sponsorship and there is no evidence before the Tribunal that the applicant meets any of the exceptions pursuant to cl.820.221(1)(b), (2) and (3). These exceptions allow for the sponsorship requirements to be waived if the sponsor has died, or family violence has occurred, or that there is a child involved in relation to whom the applicant and the sponsor both have certain obligations.

13. The applicant has provided no comments on or response to the information that his relationship with the sponsor has ended and that the sponsoring partner has withdrawn their sponsorship of the application. Further, the applicant has not, as invited, provided information relevant to the exceptions to these requirements.

14. There is therefore no evidence before the Tribunal that the applicant continues to be the spouse or the de facto partner of the sponsor or that the sponsorship is continuing. Further, there is no evidence before the Tribunal that the sponsor has died, that specified family violence has occurred or that the relevant circumstances in relation to a child exist.

15. Given these findings the Tribunal is not satisfied that the applicant meets cl.820.221(2)(c) or the alternative criteria in cl.820.221(2A), (3), (4), (5) or (6).

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

    DECISION

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

    Ann Duffield
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act 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 married to 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).