MIGRATION REVIEW TRIBUNAL DECISIONS
Australian Partner and Family Visas
November 2008
071902520
28 November 2008, Brisbane
Mr T Delofski, Member
PARTNER (RESIDENT) (CLASS BS) VISA – SUBCLASS 801 – CL.801.221(6) – CHILD – A delegate of the Minister of Immigration and Citizenship refused to grant the applicant a Partner (Resident) (Class BS) Visa on the basis that she failed to satisfy the requirements in cl.801.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant was no longer the spouse of the sponsoring spouse. The applicant claimed she and her husband were married and had a son. She claimed they were in a genuine spousal relationship for more than a year after the birth of their son, at which time the relationship ceased. The applicant also claimed that she and the sponsoring spouse had agreed on access arrangements for their son. The sponsoring spouse informed the Tribunal that he had withdrawn his sponsorship of the applicant.
Held: Decision under review set aside
The Tribunal was satisfied that the applicant and the sponsoring spouse had been in a genuine spousal relationship and she would have met the requirements of cl.801.221(2) except that the relationship had ceased. The Tribunal was influenced by the fact that the applicant and sponsor had a son from the marriage and evidence that they lived together for over three years after the marriage. The Tribunal was further satisfied that the applicant and sponsor were the biological parents of the son, the applicant had ongoing access to the son, and as his biological father, the sponsor had formal maintenance obligations under s.3 of the Child Support (Assessment) Act 1989. The Tribunal noted that the applicant lost her Subclass 820 visa when the delegate refused her the grant of a Subclass 801 visa. Therefore, the Tribunal found the applicant met the requirements of in cl.801.221(6) of the Regulations except that she was not the holder of a Subclass 820 visa at the time of decision so did not meet cl.801.221(6)(a). The Tribunal remitted the application to the Department for reconsideration.
December 2008
071672970
4 December 2008, Melbourne
Mr D Mitchell, Member
PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 – CL.309.221 – R.1.15A – SPOUSE DECEASED – A delegate of the Minister of Immigration and Citizenship refused to grant the visa applicant a Partner (Provisional) (Class UF) visa. After the review application was made, the applicants’ agent informed the Tribunal the review applicant had died. He also informed the Tribunal he had no meaningful instructions and could no longer act. The Tribunal’s attempts to contact the estate of the review applicant to obtain a withdrawal of the review application were unsuccessful.
Held: Decision under review affirmed
The Tribunal accepted that the review applicant died. It found that, ordinarily, in the case of a sole applicant, the death would have extinguished any review entitlement. However, it was unclear whether this extended to the death of a review applicant who was not the subject of the primary decision. Regulation 4.14(2)(a) of the Migration Regulations 1994 (the Regulations) provided for an application to be withdrawn after the death of a review applicant suggesting the application continued after death. Therefore, the Tribunal found the review application continued in the name of the deceased’s estate. However, as a result of the review applicant’s death the applicants’ marriage was dissolved and the visa applicant could not satisfy r.1.15A(1A)(a) for a marriage that was recognised as valid for the purposes of the Migration Act 1958 at the time of decision. The Tribunal also found any spousal relationship that existed at the time of application ceased due to the review applicant’s death so the visa applicant did not meet r.1.15A(2)(c)(i) and 5 (ii) for a de facto relationship. The Tribunal found the visa applicant did not meet the criterion in cl.309.221 of the Regulations for the grant of a subclass 309 visa.
071935107
3 December 2008, Adelaide
Ms D Morgan, Member
PARTNER (PROVISIONAL) (CLASS UF) – SUBCLASS 309 – CL.309.211 – R.1.15A – SPOUSAL RELATIONSHIP – A delegate of the Minister of Immigration and Citizenship refused to grant the visa applicant a Partner (Provisional) (Class UF) visa on the basis she did not satisfy cl.309.211 of Schedule 2 the Migration Regulations 1994 (the Regulations) because she did not meet r.1.15A. The parties had never physically met each other. Movement records showed the review applicant had not left Australia since first entering. The review applicant claimed he married the visa applicant by proxy according to Islamic rites with his brother representing him in Sudan at the marriage ceremony. Before the Tribunal, the review applicant claimed the visa applicant told him she did not want to come to Australia to be with him. As a result, the review applicant stated he intended to divorce the visa applicant.
Held: Decision under review affirmed
The Tribunal found there was no evidence of any issue as to the validity of the marriage for the purposes of the Marriage Act 1961 and found the applicants were validly married at the time of application and decision. However, based on the review applicant’s evidence that he intended to divorce the visa applicant, the Tribunal found the spousal relationship had broken down. Consequently, the Tribunal determined that the applicants had failed to demonstrate a mutual commitment to their marriage to the exclusion of all others, or that their marriage was genuine and continuing as required by r.1.15A(1)(b)(i) and (ii). It further determined that the parties did not live together and they lived separately and apart on a permanent basis so failed to meet r.1.15A(1)(b)(iii)(A) and (B). Therefore, the applicants were not spouses and did not meet the criterion in cl.309.211 and 309.221 of the Regulations for the grant of a subclass 309 visa.
Precis, The MRT-RRT Monthlthy Decisions Bulletin, Migration Refugee Tribunal - Refugee Tribunal, 2 February 2009, copyright Commonwealth of Australia reproduced by permission.
