Gill (Migration)

[2018] AATA 1662

Gill (Migration) [2018] AATA 1662 (27 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhjinder Singh Gill

CASE NUMBER:  1518065

DIBP REFERENCE(S):  CLF2012/128584 CLF2016/2507 CLF2016/2526

MEMBER:Mary Urquhart

DATE:27 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 27 April 2018 at 11:30am

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Whether a genuine spousal relationship exists – Applicant separated from sponsor – Applicant no longer in Australia – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 36B, 65, 338(2), 347, 362B
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cl 801.221

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 4 December 2015 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 June 2012 on the basis of his relationship with his sponsor Ms Baljinder Kaur. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter the primary criteria include cl.801.221.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because on the evidence the delegate was not satisfied that the applicant remained the spouse of the sponsor.

4. The applicant sought a review. The Tribunal notes that at the time of application the applicant was on shore and is both the applicant and the review applicant in this review.

5. On 4 April 2018 the Tribunal wrote to the applicant through his authorised representative advising that it had considered all the material before it relating to his application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 27 April 2018.

6. On 27 April 2018 the applicant did not attend the hearing or contact the Tribunal to explain his failure to attend.

7. The Tribunal notes that at the time of application the applicant was on shore and is both the applicant and the review applicant in this review.

8. The Tribunal finds that the delegate’s decision is a reviewable decision under s.338(2) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

9. Prior to the hearing the authorized recipient, who is also the sponsor advised the Tribunal in writing that the relationship between her and the applicant ended in 2016. She advised they are now divorced. Mrs Kaur indicated that Mr Sukhjinder Singh Gill was in India.

10. Movement records indicate Mr Gill departed Australia over two years ago on 30 December 2015.

11. No further information in support of the review has been provided by the applicant.

12. In these circumstances, the Tribunal has decided, pursuant to s. 362B of the Act, to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant is the spouse of the sponsor at the time of this decision.   

15. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australia citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

16. ‘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).

17. Based on the material contained on the Department file the Tribunal accepts that the application was made on the basis of a spousal relationship between the applicant Mr Gill and Ms Baljinder Kaur who lodged a sponsorship in support of the application in accordance with the regulations. The applicant was granted a subclass 820 visa on 7 March 2014.

18. The primary criteria to be satisfied at the time of the decision are set out in cl.801.22. Clause 801.221 requires that at the time of decision the visa applicant is the spouse of the sponsoring spouse within the meaning of r.1.15A of the Regulations.

19. The Tribunal notes Mr Gill appointed the sponsor to be his authorized representative. He has made no change to this arrangement. The Tribunal is satisfied that a valid notice of hearing has been served.

20. The Tribunal notes that on 5 April 2018 Ms Kaur, the sponsor, advised the Tribunal that the relationship between her and the applicant had broken down and that the parties divorced in 2016. The Tribunal notes the applicant departed Australia some two years and 4 months ago and has not returned.

21. On the basis of the evidence before it the Tribunal finds that the applicant is no longer in a spouse relationship with the original sponsor and is therefore unable to satisfy a central requirement of 801.221. Accordingly the Tribunal affirms the decision under review.

22. Given these findings the Tribunal is not satisfied that the requirements of s.5F (2) are met at the time of this decision. Therefore the applicant does not meet cl.801.221 (2) (c).

23. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant comes within any of the limited exceptions to 801.221.

24. For the reasons above, Mr Gill does not satisfy the criteria for the grant of the visa.

    DECISION

25. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Mary Urquhart
    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 sub regulation (3).

    (3)The matters for sub regulation (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 sub regulation (2), the Minister may consider any of the circumstances mentioned in sub regulation (3).