Chand (Migration)

[2018] AATA 5347

Chand (Migration) [2018] AATA 5347 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ravinesh Chand

CASE NUMBER:  1716098

DIBP REFERENCE(S):  CLF2014/45131 OSF2014/056211

MEMBER:Justin Owen

DATE:26 October 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 26 October 2018 at 12:14pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – relationship ceased – no exceptions claimed – new offshore Partner visa application lodged – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 100.221

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 Immigration on 12 July 2017 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 March 2013 on the basis of his relationship with his sponsor, Australian citizen Ms Nilam Sonam Kumar. At that time, Class BC contained one subclass: Subclass 100 (Partner). 

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221 because the applicant was not, at the time of decision, the spouse (as defined under section 5F of the Act) or the de facto partner (as defined under section 5CB of the Act) of the sponsoring partner.  

5. The Tribunal received from the applicant a valid application for review on 25 July 2017. 

6. On 23 April 2018 the Tribunal wrote to the applicant pursuant to sections 359A and 359(2) of the Act inviting him to comment on or respond to information by 7 May 2018.  The applicant responded through his representative on 4 May 2018. 

7. In his written response the applicant confirmed that his relationship with the sponsor had ended and he had legally separated from the sponsor, his ex-wife on 30 December 2017.  He wrote that he had subsequently married Ms Shaniza Shaileen Nisha on 3 March 2018 and he had lodged an offshore Partner visa application on the basis of his relationship with Ms Nisha.  The applicant did not make any formal claim to of the exceptions though he stated that he had been mistreated badly and abused in a psychological manner by his former sponsor.  No corroborative evidence was provided in support of this assertion.  

8. The applicant appeared before the Tribunal on 25 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s new wife, Ms Shaniza Nisha.   

9. The applicant was represented in relation to the review by his registered migration agent.

10. ISSUE

11. Relevantly in this case, at the time of decision, to be granted a Subclass 100 visa, the applicant must continue to be sponsored by his sponsoring partner (expect where exceptions apply).

    EVIDENCE

12. The applicant told the Tribunal that the relationship with his sponsor had ceased.

13. The Tribunal sought to determine whether circumstances existed in which the applicant may continue to be considered for the grant of visa. The applicant confirmed the sponsoring partner is not deceased. The applicant told the Tribunal he and his sponsor had no children of their relationship and was not claiming the exception pertaining to children.  The Tribunal asked whether the applicant had any claim in regards to relevant family violence perpetrated against him by his sponsor. The applicant replied in the negative.

    FINDINGS

14. Clause 100.221 subclause (1) of the Regulations requires that the applicant must, at the time of decision, satisfy subclause (2), (2A), (3), (4) or (4A) of clause 100.221. Relevantly in this case, 100.221 subclause (2) requires that the applicant remains the spouse (as defined under section 5F of the Act), or de facto partner (as defined by section 5CB of the Act) of their sponsoring partner at that time. 

15. As the sponsoring partner has withdrawn sponsorship as evidenced in the delegate’s decision record provided by the applicant and by the applicant in his consistent oral evidence and written submissions to the Tribunal, the applicant in this case no longer continues to be sponsored for the grant of the visa by his sponsoring partner who in this case is an Australian citizen, who sponsored the applicant for that visa.   Accordingly, at the time of decision the applicant does not continue to satisfy the criteria in cl.100.221(2).

16. The applicant may satisfy clause 100.221 by meeting the requirements of at least one of the subclauses (3) and (4).  These prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residence where the relationship with the sponsor has ceased.  These include the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children.  At the hearing the Tribunal invited the applicant to make a claim and provide any information he believed may be relevant to these exceptions.  The applicant stated that the sponsor was not deceased.  The applicant said there were no children in the relationship.  The applicant had previously in his written submission stated that there are no court orders or responsibilities to children.    The applicant at the hearing declined the invitation to make any formal claim of family violence.   The applicant did not claim any of the exceptions.  Given this evidence the applicant does not meet the alternative criteria in cl.100.211 (3)-(4). 

17. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria cl.100.211 (2A) and (4A) which relies on specific procedural scenarios that do not apply in this case.  

18. Accordingly, given all the above, the applicant does not meet cl.100.221.

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

20. At the hearing the Tribunal also informed the applicant that a certificate has been issued by the Delegate under s.376 of the Migration Act restricting the Tribunal from disclosing certain information in the Departmental file on the basis that the information contained in the folios had been provided to the Department in confidence.  The Tribunal informed the applicants that it considered the certificate was valid. The certificate was provided to the applicant at the hearing.  

21. The Tribunal has discretion under s376 to disclose the information on the file. The Tribunal said to the applicant that in relation to the folios it considered that the certificate contained a valid ground not to disclose the folios covered by the certificate. The Tribunal said that it nevertheless wished to provide the particulars and the gist of this information to the applicant. The Tribunal informed the applicant that the folios pertained to two emails from the sponsor informing the Department that her relationship with the applicant had ended and that she and the applicant had separated. The applicant was informed that the sponsor had expressed her suspicion that the applicant had only married her for migration purposes. The applicant was informed that the sponsor had made allegations that the applicant was back in contact and in a relationship with an ex-girlfriend. The applicant was invited to make submissions on the validity of the certificate and why the material should be released. The applicant decided to respond at the hearing and did not seek the release of the information.

22. The Tribunal also put this same information to the applicant under s359AA of the Act and invited the applicant to comment on or respond to the information.  The Tribunal stated to the applicant that it was putting this allegation to him because at face value this was adverse information and indicated that he may have entered into a relationship with the sponsor for migration purposes.  The Tribunal said however that it was not intending to put any weight on these particular allegations as part of this review. The Tribunal noted that the applicant himself in his oral evidence and in his written submission had already conceded that his relationship with the sponsor had concluded.    The applicant was invited to comment or respond either at the hearing or later in writing.  The applicant decided to respond at the hearing.  The applicant provided the Tribunal with a detailed history of the problems he had faced in his relationship with the sponsor and discussed his lodgement earlier in 2018 of an offshore Partner visa sponsored by his new wife.  He expressed his concern about having to leave Australia before his offshore Partner visa application sponsored by his new wife Ms Nisha was processed.   Ms Nisha also in oral evidence expressed her concerns about the applicant potentially having to temporarily depart offshore whilst his new Partner visa application was processed.  The Tribunal notes the concerns of the applicant and his new wife.  The Tribunal nevertheless notes that the review before it pertains to the applicant’s visa application from 2013 which was based upon his relationship with his then wife and sponsor.  The applicant has confirmed that the relationship has concluded.  The applicant has not made a formal claim to any of the exceptions.    

    DECISION

23. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

    Justin Owen
    Senior Member