1920418 (Migration)

[2019] AATA 6073

1920418 (Migration) [2019] AATA 6073 (19 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1920418

MEMBER:Peter Emmerton

DATE:19 September 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 19 September 2019 at 10:21am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visas – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – free of certain diseases or conditions – relationship ceased – relationship no longer genuine or continuing – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 187.235, 187.311; Schedule 4 Public Interest Criterion 4005; rr 1.12, 1.15

CASES

Hasran v MIAC 2010 FCAFC 40

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 11 January 2018. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.187.235(2) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because she did not satisfy Public Interest Criteria (PIC) 4005 of schedule 4 to the Regulations.

3. On 2 September 2019 the Tribunal wrote to the applicant pursuant to s.359(2) of the Act, inviting the applicant to provide information about the claimed date of separation from her spouse and the current status of their relationship and her current residential address. In addition documentary evidence was requested to support separation claims, for example, a lease in her own name, utility bills in her own name, statutory declarations etc., in writing. The invitation was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 16 September 2019 or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4. The review applicant did not provide the information within the prescribed period and no extension of time was requested within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC 2010 FCAFC 40. The Tribunal subsequently invited the submission of any evidence the applicant would like to be considered by 9-00am 19 September 2019. The Tribunal has decided to proceed to a decision following the receipt of the written evidence without taking further steps to obtain information.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The original issue as identified by the delegate for this review was whether each member of the family unit of the applicant who is an applicant for a Subclass 187 meets Public Interest Criterion (PIC) 4005 as required by 187.235(2). Public Interest Criterion 4005 requires the applicant, in certain circumstances, to undergo medical assessment, and to be free of certain diseases or conditions that may impact on the community.

8. The applicant in this case was unable to satisfy the delegate that they were able to meet 187.235 as the secondary applicant, as [the applicant] is suffering from an asymptomatic chronic medical condition. Two different MOC’s have found in 2 separate opinions dated [in] May 2019 and [July] 2019 that [the applicant] does not meet PIC 4005 (1)(c)(ii)(A). This is because the condition would result in a significant cost to the Australian community in the areas of health care and/or community services.

9. The Tribunal has noted that the second MOC made their decision post the changes to the MOC cost assessment consideration which came into force 1 July 2019.

10. The Tribunal finds that this is no longer the dispositive issue as evidence has been presented to support the claim that [the applicant] and the primary applicant [named] are no longer in a Spousal relationship as defined by Section 5F.

11. The following documents were supplied to the Tribunal, by [the applicant] and the Tribunal accepts them to be accurate and true.

    ·A detailed 43 paragraph statement chronologically organised, outlining the history of the relationship and subsequent marriage from May 2014 in India, until the point in time of writing the document, 16 September 2019.

    ·A detailed list of numerous periods of separation, chronologically ordered, contained within the fore mentioned statement. The most recent separation occurring from October 2018 when [the applicant] moved to her sister’s home.

    ·A paragraph within the statement made by [the applicant], states that following the visa rejection on 15 July 2019, her husband told her on 18 July 2019, ‘[applicant’s name] please understand if anyone of us must go back to India let it be that we have to separate on papers and get divorce but he will get me back from India. He said he will prepare the paperwork and send it to me, and he said I had better sign it otherwise he will make it very messy.’

    ·[The applicant] then went on to assert, ‘that was the last time we talked since then I tried calling him a few times but he doesn’t want to talk now. As he can see that the visa was rejected on the grounds of my health condition so he wanted to get rid of me and go further.’

    ·A photograph of [the applicant’s] face showing an apparent bruise which she claimed was inflicted by her husband in June 2018.

    ·An email dated 17 September 2019 from [the applicant], detailing her living arrangements with her sister in [Town 1] from 22 September 2018, at the time of her moving out of the home she shared with her husband at [Address 1]. She then stated that she moved into a share house from her sister’s home, the address being [Address 2]. [The applicant] stated that her husband was asking her in June 2019 to get an apartment so that he could move back in with her as he couldn’t live with his girlfriend anymore. In this same email [the applicant] asserts that if her visa is granted ‘there are great chances that we will get back together as he has told me several times that his relation is not good with his girlfriend.’

    ·A substantial number of screen shots from mobile telephones showing detailed, private and very frank conversations between [the applicant] and [her husband’s] alleged girlfriend. Their nature and content supports the fact that both parties in the conversations believe [the applicant’s] husband has been involved in a relationship with his alleged girlfriend.

12. Evidence was provided by [the applicant’s] representative and documentation produced at the time of application supporting the Tribunals view that [the applicant] and her husband [named] are not residing at the same address.

13. The Tribunal appreciates that relationships are complex and one member of a relationship may have differing motivations for being in a relationship than the other member. It also accepts that one person in a relationship may maintain a genuine desire to be with a partner that may not always be reciprocated. In order for a relationship to be genuine both parties must however be committed to that relationship.

14. The substantial body of written evidence provided by [the applicant] leads the Tribunal to conclude that they are no longer in a genuine spousal relationship. They no longer have a mutual commitment to a shared life as a married couple, the relationship between them is no longer genuine or continuing and they now live separately and apart on a permanent basis. The applicant was persuasive and appeared to make written statements to the Tribunal honestly and without obfuscation, in spite of her displayed apparent emotional sadness.

15. ‘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 about these matters, regard may be had to all of the circumstances of the relationship. This may include evidence of the financial and social aspects and the nature of the visa applicant’s household and their commitment to each other as set out in r.1.15A(3). The Tribunal is satisfied that [the applicant] the [her husband] are no longer in a spouse relationship as defined by s.5F of the Act.

16. The Tribunal finds that as [the applicant] and [her husband] are no longer in a spousal relationship, she is no longer a member of [her husband’s] family unit as defined in r.1.12(1). As was declared by [the applicant] on her Form 80, she had only held Student and Bridging visas up until the time of application. Therefore the definition of family unit in 1.12(12) does not apply. Accordingly [the applicant] is not a member of the family unit of a 187 visa holder therefore does not meet cl.187.311.

17. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Peter Emmerton

    Member