KAUR (Migration)

[2017] AATA 2609

KAUR (Migration) [2017] AATA 2609 (11 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs MANVEER KAUR

CASE NUMBER:  1614007

DIBP REFERENCE(S):  CLF2014/39620

MEMBER:Kira Raif

DATE:11 September 2017

PLACE OF DECISION:  Sydney

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

Statement made on 11 September 2017 at 9:24am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 – Department conducted a site visit – Change in circumstances – No longer in a relationship with the sponsor

LEGISLATION
Migration Act 1958 ss 5F, 5F(2)(a)-(d), 65, 104
Migration Regulations 1994 r 1.15A(3), Schedule 2 cls 820.211, 820.211(2)(a) , 820.221

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 24 August 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in March 1990. She applied for the visa on 12 March 2014 on the basis of her relationship with her sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and cl. 820.221 because the delegate was not satisfied that the applicant was the spouse of the sponsor. The delegate also found that the applicant did not meet PIC 4020 because the applicant failed to inform the Department about the breakdown of her relationship with the sponsor. The applicant seeks review of the delegate’s decision.

3. On 18 August 2017 the Tribunal received a request from the applicant’s representative to postpone the hearing to enable the applicant to issue instructions. The Tribunal considered the request but decided not to postpone the hearing. The Tribunal is mindful that the applicant was invited to attend a conference with the Tribunal in December 2016 to discuss the issues arising on review. The applicant was well aware of these issues from the time the primary decision was made and had ample time to appoint a representative, if she wished to do so, and to obtain advice and give instructions. The application for review was made in September 2016, a year before the scheduled hearing and, again, the applicant had ample time to take steps to prepare her case. The Tribunal also notes that the applicant appointed a migration agent about four weeks prior to the hearing. In the Tribunal’s view, that also gave the applicant ample time to give instructions and receive advice from her migration agent. The legislation prescribes a much shorter period of notice to invite a review applicant to the hearing, which implies that such period is sufficient for applicants to prepare their case. In these circumstances, the Tribunal has formed the view that there would be no disadvantage to the applicant if the hearing were to proceed at the scheduled date and time.

4. The applicant appeared before the Tribunal on 11 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). T

6. 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.

7. ‘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). 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 parties’ household and their commitment to each other as set out in r.1.15A(3).

   Are the other requirements for a spousal relationship met?

8. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant was sponsored in her visa application by Mr Bikram Sahi. According to the decision record, DIBP officers conducted a site visit at the applicant’s stated place of residence in September 2015. The applicant informed the officers that she was no longer in a relationship with the sponsor Mr Sahi. The applicant stated that she planned to marry another person, Mr Gagandeep Sarao, who was living at the same address. The applicant subsequently informed the Department in April 2016 that her relationship with Mr Sarao also ceased. The applicant confirmed in her oral evidence to the Tribunal that her relationship with the sponsoring partner has ended because her partner did not support her financially.

9. The Tribunal finds that at the time of this decision, the applicant is no longer in a relationship with the sponsor. There is no evidence that the sponsoring partner has died. There is no evidence that the applicant has suffered family violence and although the applicant claims the sponsor did not support her financially, the applicant has not formally raised the claim of family violence in accordance with the statutory requirements. There are no children to the relationship and no evidence of any responsibilities towards any children. The Tribunal is not satisfied the applicant meets cl. 820.221.

   Does the applicant meet PIC 4020

10. The Tribunal is mindful that the delegate found that the applicant did not meet PIC 4020 because she failed to inform the Department about the change in her circumstances, once her relationship with the sponsor ended. The Tribunal is of the view that the applicant had been untruthful in her dealings with the Department by failing to inform the Department that her relationship with the sponsor had ended. However, PIC 4020 applies in relation to the information or documents that had been given by the applicant. It does not apply to omissions. The fact that the applicant failed to inform of a change of circumstances may be a ground for cancelling her visa, if that visa had been granted. It may be relevant to the assessment of the applicant’s credibility. However, the Tribunal does not consider that the applicant’s failure to inform of a change of circumstances engages the operation of PIC 4020.

11. The applicant provided a written submission to the Tribunal on 31 August 2017. The applicant conceded that she was no longer in a spousal relationship with the sponsor and cannot be granted the Partner visa, however, the applicant claims that it was inappropriate to rely on PIC 4020 and that  part of the Departmental policy on PIC 4020 is invalid.

12. The applicant notes in her written submission that she arrived in Australia holding a Student visa in May 2008, married the sponsor in January 2014 and subsequently applied for a Partner visa. The applicant refers to the site visit which ‘revealed’ that she was in a relationship with Mr Sarao. The applicant claims that at the time of the site visit she was intoxicated but her reference to Mr Sarao being her boyfriend was correct and her relationship with the sponsor ended in 2015 due to the tensions in that relationship.

13. The applicant claims, having regard to the regulatory framework, that PIC 4020 requires an active step to provide false or misleading information and this does not apply in the applicant’s circumstances where there was an omission by the applicant to inform the department about the change in circumstances.

14. As noted above, the Tribunal considers this to be a correct view of PIC 4020. This provision does require that the applicant has given, or cause to be given, information or documents. It does not relate to omissions. The applicant may have been required, under s. 104 of the Act, to inform the Department about the changes in her circumstances. It may be that her relationship with the sponsor was never a genuine one, in which case the applicant’s claim to be the spouse of the sponsor may constitute false or misleading information. However, that was not the finding of the delegate. The delegate found that PIC 4020 applies merely because the applicant failed to advise about the changes in her circumstances and that is not a requirement of PIC 4020. The applicant’s failure to advise about the changes in her circumstances cannot be a ground for a finding that false or misleading information has been provided and does not engage PIC 4020.

15. As there is no suggestion that the applicant has otherwise provided a bogus document or false or misleading information, the Tribunal find that the applicant meets PIC 4020.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member