Chowhan (Migration)

[2024] AATA 348

Chowhan (Migration) [2024] AATA 348 (20 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sant Singh Chowhan

CASE NUMBER:  2213155

HOME AFFAIRS REFERENCE(S):          BCC2018/3683670

MEMBER:Christine Kannis

DATE:20 February 2024

PLACE OF DECISION:  Perth

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

Statement made on 20 February 2024 at 12:15pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased and sponsorship withdrawn – claim of false report made to department – no appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 362B
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211(2)(a), 820.221(1)(a)

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 27 September 2018 on the basis of his relationship with his sponsor, Ms Adele Attwood. 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, whilst satisfied that the applicant was the spouse of the sponsor at the time of application, the relationship had ceased by the time of decision and therefore the applicant did not satisfy cl 820.221(1)(a). The delegate was also not satisfied that the applicant’s circumstances fell within any of the permitted exceptions where a relationship has ceased.

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. On 14 December 2023, the Tribunal sent the applicant an Invitation to attend a hearing on 20 February 2024 at 9.00 am. The Invitation advised the applicant that if he was not able to attend the hearing he should advise the Tribunal as soon as possible. The invitation further advised:

   If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

6. On 9 January 2024, the Tribunal sent the applicant an email advising that the Invitation to attend a hearing sent on 14 December 2023 included a Hearing Response form for his completion and return within 7 days and that the Hearing Response form or any accompanying submissions had not been received.

7. On 9 January 2024, the applicant sent the following email to the Tribunal:

   I will fill out the form/application ASAP and email it back to you.

   I interpreted that I had to provide any additional paperwork by 13th February for the hearing.

   I mustn’t seen the form attached

8. On 10 January 2024, the Tribunal received a signed Hearing Response in which the applicant indicated that he would be participating in the hearing, that he would not be relying on any documents at the hearing and that he would not be requesting the Tribunal take evidence from any witnesses.

9. On 13 and 19 February 2024, SMS hearing reminders were sent to the phone number provided by the applicant in his Application for review form. Delivery of the SMS hearing reminders failed.

10. The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend. The Tribunal’s attempts to contact the applicant between 8.45 am and 9.30 am were unsuccessful and were answered with a message advising that the number was unavailable.

11. The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under section 362B of the Act.

12. The Tribunal makes a decision having had regard to all the information before it, including the information provided by the applicant to the Department and to the Tribunal. In these circumstances the Tribunal considers that the applicant was aware of the scheduled hearing and has had a fair opportunity to provide relevant information.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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.

15. Section 5F 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 of the relationship; and the nature of the household and the persons’ commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision.

16. The issue in the present case is whether at the time of decision, the applicant continues to be the spouse of the sponsor as defined in s 5F of the Act and if not, whether he falls within certain prescribed circumstances in which an applicant may continue to be considered for the grant of permanent residence, where the relationship with a sponsor has ceased.

17. The  relevant history of this matter is as follows:

    ·On 27 April 2022, the sponsor advised that that she wished to withdraw her sponsorship as the relationship had ceased.

    ·On 22 July 2022, the Department advised the applicant that it had received information that his relationship with the sponsor had ended and that the sponsor had withdrawn sponsorship. The letter advised that there are three circumstances in which the application can continue despite the relationship ending. The applicant was invited to comment on the information that the relationship had ended and invited to let the Department know if he might meet any of the circumstances in which a Partner visa can continue to be considered, despite the relationship ending.

    ·The applicant did not respond to the letter however the delegate noted that he was previously invited to respond to an allegation that the relationship had broken down on 22 March 2022. In his response he said:

    oThe  relationship had suffered after someone had made false allegations regarding the relationship.

    oUntil that time he and the sponsor had been looking at houses to buy together.

    oThe home they lived in with his mother-in-law was put on the market and he was under pressure to move out

    oThe sponsor has high functioning autism and situations like that make her extremely anxious.

    oHe decided to “take a break from it all until there is a reasonable solution to it”.

    oHe firmly believed that he would be able to work things out with the sponsor and find a beautiful place for them.

    oHe had not even thought of filing for divorce

    oIt has been a painful time going through a lot of emotional stress

    ·On 26 September 2023, the Tribunal invited the applicant to provide information that he is the spouse or de facto partner of the sponsoring partner. He was advised that if he was no longer in a relationship, there are exceptions under which he can be granted the Partner visa and he was advised of the exceptions. The applicant was invited to provide any information that he believed relevant to the exceptions.

    ·On 9 October 2023, the applicant provided the following response:

    I applied for the permanent partner visa application in September 2018 and have been providing all the evidence and required documents ever since whenever requested by the department. Since someone’s false report to the department last year in September or October, our relationship had taken a massive hit. I have provided the department the copy of unfair dismissal claim back then, as it was connected to threats of having me hurt and getting me kicked out of the country if I made a claim against them.
    Adele and I have been looking at houses to buy together but being it just a single income couple, only I could apply for an application. We were expecting the permanent visa last year which made it 3 years since the application was first lodged. I cannot buy one because of not being a resident yet. After that false report, our relationship started becoming fragile leading to stressful times kicking in for both of us. Our relationship hasn’t been the same ever since unfortunately.
    Adding to these circumstances, the house we lived in was with mother-in-law and she decided to put that on the market at those same times. We now were under a lot of pressure to move out somewhere with nothing sure about my visa, and that flipped everything upside down.
    My Mrs. Adele is on the spectrum with high functioning autism and times like these make her extremely anxious and not being able to cope with anything or even to find a reasonable solution. Next thing we know is Christmas time approaching and no where to go. We hence decided to take a break from it all until there is a reasonable solution to it.
    On my personal side of life in Australia, I have always been a full-time reliable employee in a few different workplaces at times. Australia has made me grow a beautiful bond with the people I have lived with, ones I have been working with and a brilliant workplace opportunity is in my hands to call it my home with proud. If the department checks, I have never been an unacceptable resident according to all my records in Australia. Me being the only child and being away from country of birth for so long has resulted in no ties back home apart from my mother and father.
    I have grown extremely attached to this place and have strong Cultural, Business and Personal ties within Australia. It has been painful times for me going through a lot of emotional stress knowing that the outcomes were never in my hands.
    I believe the officers and the team at the department will look in the depth of circumstances and give me an opportunity to continue living in Australia which has been my home for 8 years now.   

18. In the present matter, the time of application subclause met by the applicant was cl 820.211(2).

19. Cl 820.221(1) sets out the time of decision criteria and requires an applicant to continue to meet the applicable time of application subclause (cl 820.221(1)(a)) or that the applicant meets the requirements of cl 820.221(2) or (3) (cl 820.221(1)(b)).

20. There is no evidence before the Tribunal in relation to the reg 1.15A matters at the time of this decision. The applicant’s Hearing Response indicated that he would not be requesting the Tribunal take evidence from any witnesses and based on this, it appears the sponsor would not have attended a hearing. The most recent information provided by the applicant on 9 October 2023 was that he and the sponsor had decided to take a break.

21. On the basis of the evidence before it, the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of this decision and finds that the applicant does not continue to be sponsored by the sponsoring partner. Accordingly he does not satisfy cl 820.221(1)(a).

22. There are specific circumstances in which an applicant will be eligible for a Subclass 820 visa notwithstanding that the relationship between the applicant and the sponsoring partner has ceased. The specific circumstances include the death of the sponsor (cl 820.221(2), that the applicant and/or a dependent child has suffered family violence committed by the sponsor (cl 820.221(3) (a) and (3) (b) (i)) or that the applicant and the sponsor have joint custody or custody or access by a court to at least one child in respect of who they have shared rights and obligations (cl 820.221(3) (b) (ii)).

23. The applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the criteria in cl 820.221(2) or cl 820.221(3) and therefore he cannot meet cl 820.221(1)(b). 

24. The Tribunal therefore finds that the applicant does not meet cl 820.221(1), cl 820.221(2) and cl 820.221(3).

25. There is no evidence before the Tribunal and no claims have been made that the applicant meets the alternative criteria in cl 820.211(7), cl 820.211(8) or cl 820.211(9).

26. Given these findings the Tribunal is not satisfied that the applicant meets cl 820.221 at the time of decision.

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

    DECISION

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

    Christine Kannis
    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).