Lodhi (Migration)

[2019] AATA 3267

Lodhi (Migration) [2019] AATA 3267 (1 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hussam Lodhi

CASE NUMBER:  1824577

DIBP REFERENCE(S):  BCC2015/1243311

MEMBER:Justine Clarke

DATE:1 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations

Statement made on 01 April 2019 at 4:12pm

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) – Subclass 100 (Partner) – relationship ceased – sponsorship withdrawn – child exception requirements – decision under review remitted

LEGISLATION

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

Migration Act 1958 (Cth), ss 5F, 65, 359(2), 359A, 376, 360(2)(a), 375A
Migration Regulations 1994 (Cth), Schedule 2 cl 100.221, r 1.15A(3)

CASES

Srour v MIMIA (2006) 155 FCR 441

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 17 August 2018 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, Mr Hussam Lodhi, is a 28 year old national of Pakistan.

3. On 29 April 2015, the applicant applied for the visa on the basis of his relationship with his sponsor, Ms F Tariq.

4. At the time of application, Class BC contained one subclass: Subclass 100 (Partner). 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. The primary criteria include cl.100.221 which essentially requires that, at the time of decision, the applicant is the spouse or de facto partner of the sponsor, unless the relationship has ceased and certain circumstances exist.

5. The applicant provided the Tribunal with a copy of the primary decision. The primary decision states:

   ·     On 8 December 2017, the applicant’s migration agent notified the Department of the cessation of the relationship.

   ·     On 5 June 2018, the Department wrote to the applicant both by way of his migration agent and at his authorised e-mail address requesting his comment on the change to his relationship status.

   ·As at 17 August 2018, which was the date of the Department’s refusal decision, the Department had not received a response from the applicant.

6. Accordingly, the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.100.221 of Schedule 2 to the Regulations because he did not meet cl.100.221(2), (2A), (3), (4) or (4A).

7. On 23 August 2018, the applicant applied to the Tribunal for review of the primary decision. The applicant was represented in relation to the review by his registered migration agent.

8. On 30 November 2018, the Tribunal wrote a letter to the applicant pursuant to s.359(2) and purportedly pursuant to s.359A of the Act. With respect to s.359A, the Tribunal invited the applicant to comment on or respond to information that it considered would be the reason, or a part of the reason, for affirming the decision under review. The letter stated that information on the Department’s file indicates that the applicant’s relationship with the sponsoring partner has ended and that the sponsoring partner has withdrawn the sponsorship. With respect to s.359(2), the Tribunal informed the applicant that if he was no longer in a relationship with the sponsoring partner then there were a number of exceptions under which he could be granted the Partner visa. The letter listed exceptions relating to the death of the sponsoring partner, family violence and certain court orders or responsibilities in relation to children. The letter invited him to provide information that he believes may be relevant to the exceptions. The letter stated that, if the comments or response and the information were not provided in writing by 14 December 2018 or an extension of time not sought by that time, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response or the information.

9. On 4 December 2018, within the requested timeframe, the applicant submitted his response, providing written submissions that the applicant wished to proceed with the review application based on the existence of a child of the relationship pursuant to cl.100.221(4)(c)(ii).

10. On 22 March 2018, the Tribunal wrote to the applicant about two matters. First, to invite the applicant to provide information in writing pursuant to s.359(2) and, secondly, to inform him about two non-disclosure certificates which are on the Department’s file and to invite him to make any written submissions about the validity of the certificates and on why the information the subject of the s.376 certificate should be disclosed to him.

11. The Tribunal formally invited the applicant to provide the following information in writing:

    ·information about whether Ms F Tariq has sought, and if so sought, has obtained a further intervention order against the applicant given the existing intervention order against the applicant was to have expired at midnight on 21 January 2019; and

    ·information about the status and expected progress of the applicant’s application to the Federal Circuit Court of Australia for formal orders in relation to the child of the relationship given that directions were listed on 11 December 2018.

12. The Tribunal requested that the information and any submissions be submitted by 5 April 2019.    

13. On 28 March 2019, the applicant submitted legal submissions as well as a copy of the interim parenting order dated 11 December 2018, the interim parenting order dated 12 December 2018 and an interim intervention order.

14. Pursuant to s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it.

15. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in this case is whether the applicant meets cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations.

    Clause 100.221(4)(b)

17. Clause 100.221(4)(b) requires that, at the time of this decision, the applicant would continue to meet the requirements of subclause 100.221(2) or (2A) except that the relationship between the applicant and the sponsoring partner has ceased.

18. ‘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).

19. 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).

20. In assessing whether, prior to the cessation of the relationship, the applicant was the spouse of the sponsoring partner, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files.

    Non-disclosure certificates

21. The Department’s file contains a certificate made on 6 September 2018 pursuant to s.375A of the Act and a certificate made on 26 November 2018 pursuant to s.376 of the Act. The Tribunal provided the applicant with copies of both certificates with its letter of 22 March 2018. The Tribunal also informed the applicant that it considers that both certificates were validly made.

22. In conducting the review, the Tribunal is required by the Act to invite the applicant to comment on or respond to certain information which the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review.

23. Having carefully reflected on the matter, the Tribunal has formed the view that the information subject to the certificates is not relevant to this review as it would not be the reason, or part of the reason, for affirming the decision under review. The Tribunal holds the view that the information is not relevant. This is because the Tribunal’s task in this review is to assess whether the applicant meets certain criteria required for the grant of the Subclass 100 visa. Under cl.100.221(4)(b), all that is relevantly required is that there was a spousal relationship at some anterior point in time. The Tribunal considers that the applicant meets this requirement. The information sought to be protected from disclosure by the certificate does not negate the Tribunal’s finding that the applicant was in a spousal relationship at an anterior point in time.

24. In the circumstances, the Tribunal considers it unnecessary to provide the applicant with the information the subject of the s.376 certificate pursuant to a favourable exercise of the discretion in s.376(3)(b).

25. On the basis of the evidence before it, the Tribunal is satisfied that, prior to the cessation of the relationship, the applicant was the spouse of the sponsoring partner for the purposes of the Act. The Tribunal finds that cl.100.221(4)(b) is established.

26. The next issue is whether the child exception applies.

    Clause 100.221(4)(c)

27. Clause cl.100.221(4)(c)(ii) allows for the grant of the visa where the relationship between the applicant and the sponsoring partner has ceased, and there is a child in respect of whom the applicant has custody, access, or a residence or contact order made under the Family Law Act 1975. The sponsor must also have these rights, or a child maintenance obligation.

28. A person can have a right to custody as an incident of the statutory imposition of parental responsibility by operation of the Family Law Act in relation to a biological child. Similarly, a person can have a formal maintenance obligation to a biological child without a court order, by operation of the Child Support (Assessment) Act 1989 rather than the Family Law Act: Srour v MIMIA (2006) 155 FCR 441.

29. The Tribunal notes that the interim parenting order of the Federal Circuit Court of Australia of 12 December 2018 provides for the child of the relationship to live with the mother and spend specified time with the father, which was to be supervised.

30. Having reviewed all the evidence, the Tribunal is satisfied that the applicant and the former sponsor have a child together in respect of whom they have parental rights and obligations. The Tribunal finds that cl.100.221(4)(c)(ii) is met.

    CONCLUSION

31. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 100 visa.

    DECISION

32. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

    ·cl.100.221(4)(b) and (c) of Schedule 2 to the Regulations

    Justine Clarke
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).