Maaz (Migration)

[2021] AATA 657

Maaz (Migration) [2021] AATA 657 (4 February 2021)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Maaz

CASE NUMBER:  2017642

DIBP REFERENCE(S):  BCC2016/2655147

MEMBER:Denis Dragovic

DATE OF DECISION:  4 February 2021

DATE CORRIGENDUM

SIGNED:5 February 2021

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

Paragraph 23 should read:

The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

• cl.820.211(2) of Schedule 2 to the Regulations
• cl.820.221(1)(a) of Schedule 2 to the Regulations

Denis Dragovic
Senior Member

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Muhammad Maaz

CASE NUMBER:  2017642

HOME AFFAIRS REFERENCE(S):          BCC2016/2655147

MEMBER:  Denis Dragovic

DATE:  4 February 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl.820.211(2) of Schedule 2 to the Regulations

·cl.820.221(1)(a) of Schedule 2 to the Regulations

Statement made on 4 February 2021 at 11:36am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – withdrawal of sponsorship – reconciliation – contravening a family violence order – decision under review remitted          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 820.221; Schedule 3 Condition 3002; rr 1.03, 1.15

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 (the Act).

1. The applicant applied for the visa on 11 August 2016 on the basis of his relationship with his sponsor. 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 (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.

1. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221(1) because while at the time of application the applicant was sponsored subsequently on the 24 December 2018 a withdrawal of sponsorship was received by the Department. Despite in subsequent correspondence the applicant claiming to the Department that he and his then partner had reconciled, information received by the Department, according to the delegate’s decision suggested otherwise. Despite further engagement with the applicant the delegate was not satisfied that the relationship had resumed and as such refused the visa.

1. At the time of the hearing the applicant was in immigration detention in Christmas Island. The applicant appeared before the Tribunal via conference facilities on 3 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Amara Azhar, the applicant’s wife and former sponsor. The Tribunal hearing was conducted in English.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. On the 24 December 2018 the sponsor submitted to the Department in writing a request to withdraw her sponsorship for the applicant’s partner visa. A letter from the Department was sent to the sponsor on the 12 February 2019 confirming receipt of the withdrawal and notifying her that she is no longer a party to the visa.

1. On the 12 February 2019 a letter was sent by the Department to the applicant informing him of the adverse information, namely that the sponsorship had been withdrawn. The Department and the applicant subsequently engaged in repeated communication spanning, according to the delegate’s decision, a period of five months, during which the applicant was unable to provide evidence of the continuation of the relationship.

1. On the 25 April 2020 the applicant was arrested for contravening a family violence order. He was subsequently moved into immigration detention.

1. Prior to the hearing the Tribunal received correspondence written by the applicant’s wife. The submission included a hand written narration of their relationship including how they met, where they lived, when they lived together and apart, the troubles in their relationship including ‘no-understanding, no affiliation’, the visa applicant’s regular smoking of marijuana, lack of ‘love or feelings’, when and how the visa applicant’s wife decided to withdraw her

sponsorship and the violent actions of the visa applicant. The visa applicant’s wife concludes, 'This is the story of our unsuccessful, unhappy and failed marriage.’

1. In a second document submitted at the same time she continues the narration explaining that more recently their circumstances had changed. In this submission she address the r.1.15(3) criteria for a spousal relationship explaining the challenges they have faced in developing evidence such as financial, social, household and commitment that would be required for to support their claim of a genuine spousal relationship. Importantly she concludes:

   After going through very hard time both emotionally and socially, both of us have realised that we could make our marriage a much better a beautiful relationship. I feel Maaz has changed a lot, specially after his mother’s death and being in detention centre realising his past mistakes he is a better person now. He does not smoke marijuana anymore, which was the main cause of trouble between us. And both of us has promised that we will learn our mistakes and will not repeat them again.

In our culture Divorce is not considered a good norm and personally I wish to save and keep my marriage that’s why I am still married to Maaz after all the troubles and problems we have gone through. He is still my husband and I wish to spend my life with him in Australia.

I request to the Respected members of AAT kindly give my husband a second change to start his life with me here in Australia, again. I love Australia and I wish to stay here with my husband. Australia is like a Heaven for people like us who come from developing countries.

1. At the hearing I asked the applicant’s wife whether she had been coerced into writing that statement by her family or whether pressure had been placed on her family by the visa applicant’s family. The applicant’s wife answered that she had not been coerced nor had her family. I was satisfied by her answers and as such accept this as being true.

1. I also explained to the applicant the obligations of the sponsor as per r.1.20(2)(c), specifically, ‘the sponsor undertakes to assist the applicant, to the extent necessary, financially and in relation to accommodation.’ She said that she understood this.

1. I asked the applicant to confirm that she wanted to continue to sponsor the applicant for the visa, to which she responded that she does.

1. As the application was refused on the basis of the applicant no longer being sponsored, as such the issue in the present review is whether the applicant remains sponsored for the visa.

Is the applicant sponsored?

1. Clause 820.211 requires at the time of application, the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in r.1.03 of the Regulations).

1. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved. For visa applications made on or after 18 November 2016, the sponsor must also have consented for the Department to disclose to each applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or

where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl.820.221.

1. At the time of application, the applicant was sponsored and had met cl.820.211(2)(c).

1. I have also considered the other provisions of cl.820.211(2), namely, whether the applicant is the spouse of an Australian citizen or permanent resident and whether the applicant satisfies Schedule 3 criterion 3002.

1. The applicant’s wife provided a copy of her passport to the Department at the application stage. Having viewed the passport copy I am satisfied that she is an Australian citizen.

1. Criterion 3002 requires that the application is validly made within 12 months after the relevant day, being in this instance, the last day when the applicant held a substantive. The applicant’s last substantive visa was a subclass 573 visa that expired on the 30 August 2016. The application for this partner visa was made on the 11 August 2016. As such criterion 3002 is met.

1. The time of decision cl.820.221(1)(a) requires the applicant to continue to meet the time of application requirements of cl.820.211(2). I am satisfied that at the time of decision the applicant is sponsored, his sponsor is an Australian citizen and the application was made within the timeframe required. As such I find that cl.820.221(1)(a) is satisfied.

1. 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 820 visa.

DECISION

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

Denis Dragovic Senior Member