Govender (Migration)

[2018] AATA 1910

Govender (Migration) [2018] AATA 1910 (14 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Woolaganathan Govender

CASE NUMBER:  1701868

DIBP REFERENCE(S):  CLF2013/253384

MEMBER:Kira Raif

DATE:14 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 February 2018 at 9:44am

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner (Permanent)) – Whether a genuine spousal relationship exists – Applicant no longer in a relationship with the sponsor – No alternative criteria met – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
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 20 January 2017 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 is a national of South Africa born in December 1968. He applied for the visa on 11 October 2013 on the basis of his relationship with his sponsor. The applicant was granted the temporary Partner visa in October 2013. The delegate refused to grant the permanent visa on the basis that the applicant did not satisfy cl.801.221 because the applicant’s relationship with the sponsor ended and the delegate was not satisfied the applicant met any of the alternative criteria for visa grant. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 14 February 2018 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, 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).

5. 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.

6. ‘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 a married couple 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 must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3).

   Is the applicant the spouse of the sponsor? 

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant sought the visa on the basis of his relationship with the sponsor and was granted the temporary visa in October 2013. However, in July 2016 the applicant and the sponsor informed the Department that the relationship ended. In his submission to the Tribunal of 12 December 2017 the applicant confirmed that he and his partner were separated and that he did not meet any of the ‘exceptions’ for the grant of the visa.

8. In oral evidence the applicant also confirmed that his relationship with the sponsor has ended. There is no evidence that at present, the applicant and the sponsor continue to live together or not apart on a permanent basis or that they maintain a joint household or share housework. There is no evidence that they share their finances, have joint liabilities or jointly contribute to expenses. There is no evidence that the applicant and the sponsor continue to represent themselves to others as being in a relationship or that they socialise together. There is no evidence that there continues to be a mutual commitment to the relationship or that the parties draw companionship and support from each other.

9. The Tribunal is not satisfied on the limited evidence before it that at the time of this decision, the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied that at the time of this decision, the applicant is the spouse or the de facto partner of the sponsor.

10. There is no evidence before the Tribunal that the sponsor has died. There is no evidence in relation to any family violence and that there are no children and no relevant court orders or responsibilities in relation to children. On the evidence before it, the Tribunal is not satisfied that the applicant meets the requirements in cl. 801.221.

11. The applicant told the Tribunal in oral evidence that he has been living in Australia for a number of years and is settled in Australia. He referred to his employment and provided a number of documents to the Tribunal concerning his circumstances. The Tribunal acknowledges that evidence but these matters do not address the relevant statutory criteria. Having found that the applicant does not meet the key criteria for visa grant, the Tribunal must affirm the decision under review.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member