Bhardwaj (Migration)

[2023] AATA 2125

Bhardwaj  (Migration) [2023] AATA 2125 (9 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shaheen Bhardwaj

CASE NUMBER:  2217557

HOME AFFAIRS REFERENCE(S):          BCC2018/3039082

MEMBER:Jennifer Cripps Watts

DATE:9 June 2023

PLACE OF DECISION:  Canberra

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

Statement made on 9 June 2023 at 11:26am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – relationship with the visa applicant had ceased – sponsorship was withdrawn by the sponsor – family violence exception does not apply in this case as the evidence required as it is specified in LIN 23/026 has not been provided – decision under review affirmed    

LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 376
Migration Regulations 1994, 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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 August 2018 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 (Cth) (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 because they were not satisfied that the applicant was in a married relationship with his spouse, as spouse is defined in s 5F of the Act.

4. The applicant appeared before the Tribunal on 24 May 2023 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.  The applicant was asked at the beginning of the hearing whether he needed the assistance of the interpreter for the entire hearing or just when he wished to seek clarification in his first language.  He indicated that he would only use the interpreter if he felt he needed to.  The applicant’s English is, in the opinion of the Tribunal, advanced.  He did not request the assistance of the interpreter throughout the hearing and the Tribunal is satisfied that applicant participated meaningfully in the hearing without any trouble, other than the occasional clarification relating to information by the applicant and the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant is in the spouse of his sponsoring partner.  Spouse is defined in s 5F of the Act and requires the parties:

   ·to be married to each other under a marriage that is valid for the purposes of the Act; and

   ·that they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and

   ·the relationship between them is genuine and continuing; and

   ·they live together; or do not live separately and apart on a permanent basis.

   Is the applicant sponsored?

7. Clause 820.211 requires at the time of application the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

8. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force.

9. The applicant had not responded to the hearing invitation sent to him by the Tribunal, nor had he provided any additional documentary evidence in support of the application as he was invited to do in the invitation.  He did, however, appear at the hearing he had been invited to.  The Tribunal discussed the applicant’s situation with him at the hearing, from the time he met and married the sponsor.  None of the following matters is in dispute:

   a.The visa application was made on 13 August 2018.  The applicant and sponsor (the parties) were validly married at the time of application. 

   b.The applicant was sponsored by the sponsor at the time of application.

   c.On 5 May 2020, the Department wrote to the applicant in a letter usually described as a ‘procedure fairness letter’ informing him that on 15 January 2020 the sponsor had withdrawn her sponsorship relating to the partner visa application. 

   d.The applicant was invited to respond to or comment on the information contained in the natural justice letter; the Department received no response from the applicant and proceeded to make a decision on the application.

   e.The applicant confirmed that he received the natural justice letter and that he did not respond to it because he was depressed.  He moved to Adelaide.

   f.The visa application was refused on 28 November 2022 because the applicant did not meet the requirements of cl 820.211(2)(a) and did not therefore meet time of decision criterion cl 820.211.

   g.An application for review was made on 30 November 2022, within time, and  the applicant provided the Tribunal with a copy of the primary decision record.

   h.The parties separated in around December 2019.

   i.The sponsorship was withdrawn by the sponsor in January 2020.

   j.The applicant confirmed at the hearing that he and the sponsor are now divorced, he thinks the divorce was finalised in 2020.

   k.The applicant provided information at the hearing that indicates the parties have not reconciled.

   l.During the hearing the Tribunal informed the applicant of exceptions to the requirement that he have a sponsor in the partner visa application, including in summary in circumstances where the sponsor has died or where an applicant has suffered family violence committed by the sponsoring partner.

   m.The applicant was interested to hear more about being able to claim that he had suffered family violence committed by the sponsoring partner, because he said he was unaware of the exception up to this time.

   n.The evidentiary and other requirements were explained to him at the hearing, including that to be relevant family violence it must have occurred within the married relationship, and that he would need to provide certain documentary evidence in support of the claim.

10. The applicant was provided with a hard copy of LIN 23/026, the instrument which specifies the evidentiary requirements to support a claim of family violence.  He stated that he was doubtful he would be able to provide such evidence, but was encouraged by the Tribunal to take some time to consider his position and think about getting some migration advice.  The hearing was adjourned and the applicant, who is not represented, was informed the Tribunal would send him a letter afterwards.

    Section 376 certificate and adverse information:  s 359A

11. On 25 May 2023, the Tribunal wrote to the applicant informing him of adverse information on the Department file that was the subject of a non-disclosure certificate (NDC) issued under s 376 of the Act.  The Tribunal was of the view that s 359A of the Act was engaged.  A copy of the NDC was attached and the applicant was invited to comment on the validity of the Certificate.  It is signed and dated by a delegate of the Minister.  The Tribunal’s opinion is that the NCD was validly issued.  The Department folio that was specified in the NDC contained information relating to information the Department received, commonly referred to as a ‘dob-in’, that the applicant had entered into the marriage with the sponsor for the purpose of getting permanent residence, that the applicant was in a contrived relationship and that the marriage was ‘fake’.  The applicant was informed that subject to his comments or response the Tribunal may give some weight to the allegation and reasons were given why. 

    Information contained in correspondence sent by the Tribunal on 25 May 2023

12. The letter sent to the applicant by the Tribunal on 25 May 2023 also confirmed the information given to the applicant at the scheduled hearing relating to a claim of family violence.  The circumstances that the applicant had described at the scheduled hearing that he may wish to refer to in pursuance of a family violence claim appeared to be non-judicial.  In the letter sent on 25 May 2023 the applicant was informed that there was a timeframe within which he should respond and provide information relating to both matters; a date of 8 June 2023 was specified in the letter.  He was also informed that if he could not provide a response by the specified date he could request more time by 8 June 2023.

13. The Tribunal has received no response to the matters raised in the letter by the due date, nor has the Tribunal received any documentary evidence relating to a claim of family violence.  The Tribunal received no request for additional time to respond from the applicant by 8 June 2023.

14. At the Tribunal hearing the applicant said that it was first time he had been told he could claim family violence.  He gave some limited information about incidents between himself and the sponsor, including that an Apprehended Domestic Violence Order (ADVO) had been issued against him.  The complainant was the sponsor and they attended court where he had an opportunity to give evidence.  A copy of the ADVO was not provided and the Tribunal did not request it, but did inform the applicant that it appeared this may not necessarily be helpful to him.  He said that the sponsor used to be violent towards him.  In the circumstances, as already mentioned, the Tribunal considered the most appropriate course of action was to provide the applicant with information relating to a family violence claim and give him an opportunity to provide evidence to support such a claim, including that he and the sponsor were spouses in a married relationship when he claims the violence occurred.

15. Criteria to be satisfied at the time of decision is found in cl 820.221 of Schedule 2 to the Regulations. The exception relating to family violence is in cl 820.221(6). An applicant must meet cl 820.221(2) which requires, essentially, that they continue to be the spouse of the sponsoring partner unless one of the exceptions in cl 820.221(6) applies, for example, the family violence exception.

16. In the circumstances that have been described in this decision, the applicant has been given a reasonable opportunity to provide the required evidence to support a claim of family violence.  He has not done so and the Tribunal is satisfied:

    ·that the family violence exception does not apply in this case as the evidence required as it is specified in LIN 23/026 has not been provided; and

    ·that the sponsorship relating to the visa application was withdrawn and is no longer in force.

17. On the evidence before the Tribunal the requirements of cl. 820.221(6) and cl 820.221(2) are not met.

18. The applicant has made no claim, nor is there any evidence before the Tribunal, that he meets any of the other cl 820.221 sub-criteria.

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

    DECISION

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

    Jennifer Cripps Watts
    Senior Member