1502426 (Migration)

[2016] AATA 3589

1502426 (Migration) [2016] AATA 3589 (23 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jawad Ullah Khan

CASE NUMBER:  1502426

DIBP REFERENCE(S):  CLF2013/50102

MEMBER:Mary Cameron

DATE:23 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 23 March 2016 at 4:10pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 30 January 2015 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 18 February 2013 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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(2)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the spouse, as defined, of his sponsor.

4. The applicant appeared before the Tribunal on 23 March 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant in the present case is a twenty seven year old national of Pakistan. He first entered Australia in 2007 as the holder of a student visa which was valid until 9 March 2013. He lodged the visa application which is the subject of review on 8 March 2013.The sponsor of the visa application is a twenty six year old Australian citizen.

7. At the Tribunal hearing the Tribunal asked the applicant why the sponsor had not attended the Tribunal hearing to provide oral evidence as had been requested by the Tribunal in the hearing invitation. The applicant told the Tribunal that he and the sponsor have separated and the relationship is “pretty much at an end”. He told the Tribunal that the relationship had been good at the beginning, but more recently had not gone well and his sponsor decided to move on. He thinks she has another partner.

8. When asked to clarify when his relationship with the sponsor had ended the applicant said it ended around May 2015, and although she stayed with him a few times after first leaving him, the relationship then ended for good. He has not had any contact with her for at least six months, although he did try to contact her by telephone and through social media, but she was not interested. He described the sponsor’s troubled personal background, and his suspicion that she has slipped back into making bad choices and engaging in the types of self-destructive conduct in which she engaged before their marriage.

9. The Tribunal asked the applicant what outcome he had hoped for in the review and he stated that he understood that he could not meet the criteria for the grant of the visa but he wanted to make it clear that he had been committed to his sponsor, and had done his best to be a good husband, and had done everything he could do. He told the Tribunal that he has lived in Australia for many years and considers Australia to be his home, and does not want to leave Australia.

   Whether the parties are in a spouse or de facto relationship

10. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and 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. In the present case the applicant claims to be the spouse of the sponsor Sally Ann Watson who is an Australian citizen.

11. ‘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). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

12. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. On the evidence, which includes a copy of the parties’ Certificate of Marriage (Departmental file, f.5) 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?

13. In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties' household and their commitment to each other as set out in r.1.15A(3).

    The financial aspects of the relationship

14. The documentary evidence provided by the applicant includes a copy of Residential Tenancy Agreement dated 9 April 2015 naming the applicant and his sponsor as tenants of a property in Cairnlea; and a copy of a letter from the applicant’s superannuation fund dated 10 March 2015 recording the sponsor as the beneficiary of the applicant’s superannuation fund.

15. The applicant’s evidence at the Tribunal hearing was that he worked during their relationship but the sponsor did not, despite his encouragement of her to do so, and that she had some financial investments.

    The nature of the household

16. The applicant provided the Tribunal with a copy of a Residential Tenancy Agreement as described above, and the Tribunal file contains a joint statement of the applicant and sponsor stating that the sponsor moved in with the applicant in June 2012.

17. The applicant’s evidence is that he and the sponsor separated in or about May 2015 and he does not know where she has lived since then.

    The social aspects of the relationship

18. The Departmental file contains the joint statement of the applicant and sponsor attesting to the genuine nature of their relationship, and statutory declarations of two friends attesting to the genuine nature of the couple’s relationship at the time of the visa application. It also contains a number of photographs of the applicant and sponsor together, and with the witnesses to their marriage.

19. The applicant told the Tribunal that his family in Pakistan had been accepting of his relationship with his sponsor. He told the Tribunal that he has not however had any contact with the sponsor for at least six months prior to the date of the Tribunal hearing.

    The nature of the parties’ commitment to one another

20. The applicant told the Tribunal that he and the sponsor were committed to one another as spouses when they married, and he had tried to be a good husband, but the sponsor had chosen to end the relationship, and he is no longer in contact with her.

21. After considering all of the circumstances of the relationship, and the evidence before it, the Tribunal finds that while the applicant and sponsor were legally married in February 2013 they have not demonstrated a mutual commitment to a shared life as husband and wife to the exclusion of all others, nor does the Tribunal accept that the relationship between them was or is genuine and continuing.

22. There is minimal evidence before the Tribunal regarding the financial aspects of the parties’ relationship or the nature of any household they have shared. There is minimal evidence regarding any social recognition of the applicant and sponsor as a married couple. It is not in dispute that the couple’s relationship ended in or about May 2015, and that they have no ongoing commitment to one another.

23. Based on the evidence considered as a whole and in consideration of the factors set out in r.1.15A the Tribunal is not satisfied that at the time the visa application was made and the time of this decision the parties had a mutual commitment to a shared life as husband and wife to the exclusion of all others; that the relationship between them is genuine and continuing, or that they live together or do not live separately and apart on a permanent basis.  The Tribunal is therefore not satisfied that they were or are in a spousal relationship as defined by s.5F, and therefore the applicant does not meet the requirements of cl.820.211(2) at the time of application and cl.820.221 at the time of decision.

24. There is no evidence before the Tribunal to indicate that the applicant meets any of the alternative sub criteria in cl.820.211(3), cl.820.211(7), 820.211(8), 820.211(9), 820.221(2), and 820.221(3) As the applicant does not meet an essential criterion for the visa, the Tribunal affirms the decision under review.

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.

    Mary Cameron
    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).