1318705 (Migration)

[2016] AATA 3326

1318705 (Migration) [2016] AATA 3326 (24 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Harvinder Kaur

CASE NUMBER:  1318705

DIBP REFERENCE:  CLF2011/81798

MEMBER:Rosa Gagliardi

DATE:24 February 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 24 February 2016 at 1:56pm

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 on 25 November 2013 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 23 May 2011 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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. Relevantly to this matter the primary criteria include cl.801.211.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.211 because at the time there were concerns that the parties were not in a genuine and continuing spousal relationship as required by Regulation 1.15A and s.5F of the Migration Act 1958.

4. The applicant appeared before the Tribunal on 30 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ravinder Kapoor, the applicant’s claimed current partner. 

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DEFACTO (cl.801.221(2))

   Whether the parties are in a spouse or de facto relationship

7. Relevantly to this matter, cl.801.221(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. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a) - (d). Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

   Are the other requirements for a spousal relationship met?

9. The Department initially had concerns about the case because, among other things, it had received unfavourable information indicating that the visa applicant had entered into a contrived relationship with her sponsor for the sole purpose of obtaining a permanent visa.  Consequently, a home visit was undertaken by Departmental officers on 1 October 2013, but they were unable to speak to the applicant in person, although the sponsor was interviewed.  The parties were then invited to attend a face to face interview at the Departmental offices.  At this interview the parties appeared to give inconsistent answers to the officers.  In addition, it was found that based on the information provided, and the findings in relation to the financial and social aspects and the nature of the household, there was little evidence to support the applicant’s claims that she and her sponsor provided each other with companionship and emotional support and had a mutual commitment to one another consistent with Regulation 1.15A.

10. Prior to hearing the Tribunal received a submission from the applicant’s migration agent, dated 24 November 2015, indicating that the applicant was no longer in a relationship with the sponsor, Mr Sunil Dahiya and acknowledging that the applicant could not satisfy the time of decision criteria prescribed by Schedule 2 of the Regulations. The migration agent advised that the application was being made solely on the grounds of being able to access the Minister’s discretion to intervene, to grant the applicant a visa pursuant to s.351 of the Migration Act.

11. The Tribunal has no evidence before it that the applicant could meet the alternative provisions in that she is not claiming that her former spouse is deceased or that she and her former spouse had care of Australian citizen children.  Nor did she make claims of family violence perpetrated by her former spouse.

    Background

12. In the submission to the Tribunal of 24 November 2015, it is argued that at the time the Department conducted a site visit at the applicant’s home the relationship with the sponsor was “volatile”.  It is claimed that the parties were constantly fighting and the sponsor refused to spend time with the applicant.  She was deeply unhappy and concluded that she did not wish to spend the rest of her life fighting with her former husband and they separated soon after.  They lived under the same roof until she moved in with her claimed current spouse. 

13. The Tribunal notes that the applicant and the sponsor made no mention of their difficult circumstances at the time of the site visit.  It is not unusual that married persons may at times undergo difficult times in their marriage but this does not preclude that they are in a genuine and continuing spousal relationship.  The fact that the parties were not able to be truthful with the Department about these matters raises queries in the Tribunal’s mind about whether in fact the relationship had already ended at the time of the site visit held on

    
    

    1 October 2013, but had proceeded as though the marriage were still extant to enable the applicant to gain permanent residency.  The Tribunal does not have jurisdiction, however, to open up the issue of whether the parties at the time of application met cl.801.211. The matter does, however, go to the visa applicant’s credibility, in particular as she had been living under the same roof as her sponsor up until the time she moved in with her new partner.

14. It is claimed that the visa applicant first met Mr Ravinder Kapoor in early 2013.  They were originally friends but after the relationship with the sponsor ended they realised that they had feelings for each other and began dating.  It is further claimed that after they formed a relationship the couple decided that they wanted to spend the rest of their lives together and they moved in together in December 2013.  The Tribunal notes that this was several months after the home visit held in October 2013 and only one month after the refusal of this Partner visa application. 

15. Given the timing of the home visit and the refusal of this visa application, the Tribunal queries whether in fact the visa applicant had already commenced her relationship with

    
    

    Mr Ravinder Kapoor while her visa application on the basis of being in a genuine and continuing spousal relationship with her former husband was still being progressed.  Given that she and Mr Kapoor decided to move in together in December 2013, shortly before the Department was still assessing the applicant’s case, it would appear that the visa applicant had failed to inform the Department that her relationship with the sponsor had broken down and that she had commenced another relationship prior to the Department handing down its decision.  This omission is not something that is easily overlooked.

16. It is claimed that in December 2014 the visa applicant lodged a subclass 309 visa on the basis of her relationship to Mr Kapoor.  They then married in March 2015 and it was only on 4 November 2015 that the visa applicant provided the Department with a Notice of Change of Circumstances, advising then of her marriage to Mr Kapoor. 

17. The visa applicant at the time of hearing was expecting a child who it is claimed has been fathered by Mr Kapoor.  The child was due to have been born on 9 February 2016. 

    Unique or exceptional circumstances for consideration under s.351

18. It is being argued that the visa applicant is concerned about the welfare of her child if she is required to go offshore.  Reference was made in the agent’s submission to Australia’s international obligations under the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR), among other things. 

19. At the time of the hearing the visa applicant submitted medical evidence provided to indicate that the visa applicant could not travel by air during her pregnancy, although such circumstances are no longer relevant. 

20. It is also claimed that Mr Kapoor is the principal source of income for the family and that he and the visa applicant are reliant on this income to repay their mortgage and living expenses and that were he to accompany the visa applicant overseas he would not be able to service their debt. 

21. It is also claimed, among other things, that the applicant has resided in Australia since

    
    

    6 February 2009 – almost 7 years and has forged substantial ties to the Australian community over this period. 

22. The Tribunal will provide the Department with the material provided by the applicant in respect of the claimed unique or/and exceptional circumstances for referring the matter to the Minister for Intervention.  The Tribunal is not persuaded that the visa applicant’s circumstances give rise to exceptional or unique circumstances but requests the Department to assess the case against the relevant guidelines for referral to the Minister.

    CONCLUSION

23. Given these findings the Tribunal is not satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant does not meet cl.801.221(2).

24. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).

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 (Residence) (Class BS) visa.

    Rosa Gagliardi
    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).