Muzamil (Migration)

[2023] AATA 200

Muzamil (Migration) [2023] AATA 200 (10 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muzamil Muzamil

CASE NUMBER:  1834132

HOME AFFAIRS REFERENCE(S):          BCC2017/3120072

MEMBER:Linda Holub

DATE:10 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 10 January 2023 at 9:52am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 –sponsor is no longer sponsoring the visa applicant – at the time of decision the applicant does not continue to be sponsored by the sponsoring partner– decision under review affirmed   

LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 376
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206

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 (Cth) (the Act).

2.    The applicant applied for the visa on 29 July 2017 on the basis of his relationship with his sponsor.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2) of the Migration Regulations because the delegate, after considering all the evidence and information considered it was not sufficient in demonstrating the applicant was the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act. The delegate had credibility and integrity concerns regarding the genuine nature of the relationship in regard to the applicant’s marriage in Australia.

4.    The review applicant appeared before the Tribunal on 1 December 2022 by video 2022 to give evidence and present arguments. The hearing was held by video because the visa applicant departed Australia 15 July 2021 and returned to India.

5.    In view of the applicant’s location, the Tribunal exercised its discretion to hold the hearing by video through the Microsoft Teams application. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were expressed by the applicant in regard to the hearing being conducted in this way nor was there any indication that he had any difficulty in understanding and responding to the questions being put. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6.    Oral evidence was also provided by Ms Saritha Arumugam. Ms Arumugam was the nominated sponsor at the time of application.

7.    The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages although the applicant mostly spoke in English and only required the interpreter from time to time. Ms Arumugam did not require the interpreter.

8.    The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

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

BACKGROUND

1. The sponsor was born in Bangalore India 3 June 1983 and is a citizen of India. She declared one previous relationship. Within the sponsorship application, it states she was married on 28 August 2006, before divorcing 30 May 2017. The sponsor has two children from her previous relationship.

2. The applicant was born in Chickmagalur, Karnataka India in 1980 and is a citizen of India.

3. The applicant declared one previous relationship. Within his application it states he married on 5 June 2004 and divorced on 27 May 2017. The applicant has two children from this relationship. His mother, sisters, brother and two children currently live in India, and his father is deceased.

4. The applicant first arrived in Australia in March 2017 as the holder of a Visitor (class FA) (subclass 600) visa which was due to cease October 2017. On 12 June 2017 he departed Australia, before returning to Australia on 25 July 2017. On 29 August 2017 the applicant lodged a Partner (Temporary) (class UK) visa. The applicant again departed on 2 August 2018, before returning 31 August 2018 and departing again on 16 December 2019, before returning 19 February 2020. He remained on shore on a Bridging visa B, before departing on 15 July 2021 and has remained offshore since that time. 

RELEVANT LAW

1. 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 (Cth) (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.

Whether the parties are in a spouse or de facto relationship

1. Clauses 820.211 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. In the present case the applicant claimed to be the spouse of the sponsor who is was the claimed sponsor an Australian citizen.

2. ‘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 parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

Evidence provided at hearing – 1 December 2022

1. The day prior to the hearing, the Tribunal wrote to the applicant by email, noting that he had not indicated if his sponsor will be participating at the upcoming hearing. The email explained that the Presiding Member would like to take evidence from his sponsor and requested that she be available during the course of the hearing to provide evidence either via phone or video. He was asked to confirm the sponsor’s involvement at the scheduled hearing and to provide her contact details.

2. On the morning of the hearing, the Tribunal received a response from the applicant stating that his sponsor will not attend the hearing.

3. At the commencement of the hearing, I explained to the applicant that I must be satisfied that he and sponsor have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing and that he and his sponsor continue to either to live together or do no live separately or apart on a permanent basis. I also explained that this is difficult to do without being able to take evidence from the sponsor. The applicant responded that the sponsor is upset with him because he cannot return to Australia because of his mother’s condition. He stated that she thinks he will not get the visa because he is offshore. I reiterated the importance of taking evidence from the sponsor and asked him if he would be agreeable for the Tribunal to call her during the course of the hearing. The applicant agreed to this and provided her mobile telephone number and asked that the Tribunal delay calling her until she has finished work.

4. I explained to him that he must be onshore to be granted the visa type he applied for and that the Department generally gives some attention to this matter if a visa is to be granted.

Discussion regarding written evidence provided

1. I asked the applicant what the significance of the taxation documentation he provided to the Tribunal. He responded that it was to show that he was able to earn an income. I explained to him that of its own accord it is not necessarily of relevance to assessing the various aspects of his relationship with his sponsor. I noted that there was no reference to the sponsor in that documentation.

2. I also explained to the applicant that the evidence that had been made available by him was not recent and was scant. I told him that in circumstances of a genuine relationship and given the length of time he claimed to have been in a relationship with the sponsor that I would expect more evidence to be provided. I told him that in a genuine relationship it would be generally anticipated that some evidence could be provided in relation to family support of their relationship should that exist. The applicant responded that because it is an inter-caste relationship and that he is a Muslim married to a Hindu woman it is very complicated. I explained that the evidence provided would need to suit their circumstances of the relationship and that it was up to him to satisfy the Tribunal that he was in a genuine and committed relationship. He referred to supporting the sponsor choose a house to buy and in her negotiation with the real estate agent. I reiterated that he needs to provide a range of evidence covering the four aspects of the relationship and that it was a matter for him to consider what was possible in the circumstances of their relationship. I noted that for the majority of time the parties claimed they were together he lived in Australia and recognise that he had spent over one year overseas now. I explained that any statements of support that he provided should be able to provide insights into the relationship and not just attest to its genuineness.

3. The applicant claimed that he and the sponsor generally communicate using WhatsApp. I noted that no evidence of his contact with the sponsor had been supplied.

4. The applicant stated that he would be able to provide further evidence.

5. The applicant told the hearing that marriage certificate was not recognised by the Australian government because it took place prior to the sponsor’s divorce being finalised. He stated that he was proceeding on the basis of a defacto relationship.

Adverse information

1. I put adverse information to the review applicant in the terms required by s.359AA of the Migration Act. It was explained to him that he did not need to comment on or respond to the adverse information immediately and that he could seek additional time to do so either after an adjournment or in post hearing submissions.

2. I explained to the applicant that a number of allegations had been made to the Department in respect of his claims of being in a relationship with Ms Arumugam. I explained that I would put each allegation to him separately and give him a chance to respond.

3. I informed the applicant that the adverse information relates to allegations made to the Department on 10 and 16 November 2017 in emails from a third party via a solicitor/migration agent, stating that:

• the applicant had forged all the documents submitted to the Department.

  oThe applicant responded that it was done by Ms Arumugam’s ex-husband who was unhappy with what happened. The applicant stated it was too much for him to take because they had known each other for 10 years. He stated the agent was a personal friend of her former husband.

• the divorce document submitted was forged by the applicant and claimed that the sponsor and the third party are still husband and wife with two children living in Australia for the last 3 years and 2 months. The email stated that this can be confirmed by the Department by checking his passport which does not show any entry to India during the period from 14 September 2014 till date of correspondence.

  oThe applicant responded they were separated. In his religion, he is Muslim, and it can happen like this. He stated Ms Arumugam’s ex-husband did not want this to happen and was saying she is not a good person.

• the rental agreement was not through any real estate agent but made by the applicant. Attached to the email were photocopies of the applicant’s and sponsor’s Republic of India passports BIO-data page and Government of Karnataka divorce certificates in the names of Muzamil and Lubna, dated 27 May 2017 and in the names of Arumugan Gunaskaran and Saritha dated 30 May 2017. The email requests the Department re verify the documents.

  oThe applicant responded the rental agreement was genuine and that his explanation is the same. He stated he was working for one builder and Ms Arumugam’s ex-husband told the builder that he is not a good guy. The applicant stated that when he started his own company the ex-husband was jealous.

• the applicant came to Australia as a tourist and asked Arumugam’s family to accommodate him in return for partial rent payments. It alleges while staying with them the applicant forged Arumugam’s partner’s documents, such as a passport, a divorce certificate, duplicated the rental agreement of the house where he was staying as a guest, and the marriage certificate, to support the partner visa application.

  oThe applicant responded there was an AVO against Ms Arumugam’s former husband. He stated he knew the couple for 10 years and her former husband was addicted to liquor. He was unhappy about family situation in India. Once they applied for the Partner visa, he started screwing things up things but after Ms Arumugam divorced him, he was quiet.

• When questioned, the applicant became threatening, stating the house is in his name and told the third party their family needed to move.

  oThe applicant responded he is lying.

• The applicant is a Muslim and has a family back in India, he is not divorced, and the documents provided are forged. Arumugam does not know his motive for staying in the country.

  oThe applicant responded the only true thing is he is Muslim.

• He states one of the references provided with the application has been withdrawn and has reported this to a lawyer.

  oThe applicant responded the lawyer was working for the sponsor’s former husband. He stated that a Muslim and Hindu being married is a big deal. He stated the agent didn’t tell them about the allegations and that a different agent told them they should go the AAT. He stated that he does not really know what the relationship between the agent and that person is.

• The email reiterates the period and date mentioned in the divorce document is not true, as he and his partner were in Sydney during the period on the document and have not returned to India since landing in Sydney September 2014. He provided the passport and visa details of himself and his partner to the Department.

  oThe applicant responded that this is true but happened over video. He stated they had to talk to the notary by video and then the seal could be added by the notary.

1. I also explained to the applicant that there appears a further allegation was made separately to the Department on 31 October 2017 through its reporting service which is also potentially adverse to him.

2. That allegation refers to a person (which the Tribunal takes to be referring to him) as working full-time on a tourist visa. It states that this person is paying $10,000 to an Aussie girl for a fake marriage to apply for a visa and that he has children and wife al home. It states that the person is being helped by his friend Arumugam Gunasekaran and his layer to fix this deal.

   oThe applicant responded that all the allegations were made by Ms Arumugam’s previous husband and because of these allegations his visa was refused even though there was no reference to them in the Department’s decision.

3. I did not place weight on the allegations as they are anonymous and, in such situations, it is unclear what the motivation of the person making the allegations might be.

4. Later in the hearing I called the applicant’s sponsor as nominated in his application and explained that I was in a hearing with the applicant and why I was calling her. She stated that she cannot be his sponsor. She stated that she told her lawyer this and that she is not supporting the visa application. She stated that she does not know what action her lawyer has taken. When asked if she was withdrawing her sponsorship she responded in the affirmative. I asked her to confirm that she is no longer sponsoring the visa applicant and she did so.

5. I asked the nominated sponsor to contact the Department and advise the Department of this and when asked if she should call or email, suggested she do both to ensure that the information is received. I explained the importance of her doing so.

6. I explained to the applicant that if he was no longer being sponsored by his previous sponsor, he will not meet one of the critical requirements, that is, that he is sponsored by an Australian citizen or permanent resident. He responded that he would like to spend some time talking to her. He stated that she is upset and that she thinks he is prioritising his mother over her and repeated that he would like to have an opportunity to make further submissions on the matter. The Tribunal agreed that he could submit anything further by close of business on 8 December 2022.

7. I also explained to the applicant that if he is no longer sponsored and no further evidence about the sponsorship is submitted, then the Tribunal may proceed to affirm the refusal on the basis that he is no longer sponsored. Otherwise, a further hearing will be required to assess whether he and the sponsor are in genuine and committed relationship.

8. The applicant told the Tribunal that he was surprised that the sponsor was withdrawing her sponsorship. He stated that she thinks it’s not going to work despite the support they had provided to each other. He stated he has to be in India for his mother and because of this the sponsor thinks she is not important.

Non-disclosure certificate

1. There is a certificate made by a delegate of the Minister under s.376 of the Migration Act of the Department's file. That provision permits the Minister to certify that the disclosure of information would be contrary to the public interest for any reason specified in the certificate that could form the basis for a claim by the Crown in right of the Commonwealth in a judicial proceeding that the matter contained in the document, or the information, should not be disclosed. The certificate relates to folios 1, 2, 13 and 15 of the Department’s file of BCC2017/3120072, the disclosure of which it states would be contrary to the public interest because it contains information about the Department’s overseas referral procedure.

2. The Tribunal is of the view that certificate is valid because of the fact that the reason provided in the certificate states how its disclosure would be contrary to public interest.

3. At hearing I discussed the certificate with the applicant and indicated its finding regarding the certificate’s validity. The Tribunal also indicated that it was of the view that the information to which it relates is relevant to its decision as the information relates to the genuineness of his relationship with the sponsor.

4. The applicant was provided an opportunity to comment on the validity of the certificate and relevance of the related folios. He said he was unable to comment on the validity of the certificate stating it was a legal issue. The applicant agreed the documents were relevant. I gave the certificate and related folio no weight in its decision.

Post hearing submissions

1. On the morning of 8 December 2022, the Tribunal received an email stating:

   “This is in regard to Muzamil’s de- facto visa. I Saritha Arumugam would like to withdraw the sponsorship. I’m no longer interested to support this visa in future”.

2. Later the same day, the Tribunal received an email from the applicant stating that his sponsor Saritha Arumugam is no longer willing to sponsor him.

Invitation to comment

1. On 13 December 2022 the Tribunal wrote to the applicant explaining that in considering his review application, the Tribunal is required by the Migration Act 1958 to invite him to comment on or respond to certain information which it considers would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review. The letter explained that the Tribunal has not made up its mind about the information.

2. The letter outlined the particulars of the information as follows:

   ·     “At hearing Ms Arumugam gave oral evidence that she no longer wishes to sponsor your visa application. Further, after the hearing both you and Ms Arumugam made written submissions confirming that she is no longer sponsoring your application.

   ·     As the Presiding Member outlined at the hearing, it is a requirement of this visa type that at the time of visa application, and at the time of the decision, you are the spouse or de facto partner of the sponsoring partner. According to your post- hearing submissions, you are no sponsored and therefore it appears that you cannot meet the requirements of clause 820.221(1).”

3. The applicant was invited to give comments on or respond to the information in writing.

4. The letter also explained to the applicant that if he is no longer in a relationship and is no longer sponsored, there are exceptions under which he can be granted a Partner visa. The exceptions being the death of the sponsoring partner, or family violence or if there are certain court orders or responsibilities in relation to children. The letter also explained how he can go about making a claim in relation to family violence and was provided with relevant information outlining the evidentiary requirements.

5. The applicant was given until 28 December 2022 to provide his comments or response

6. On 26 December 2022 the Tribunal received an email response from the applicant stating:

   “My Sponsor Saritha Aarumugam and me we very serious about sharing our life together, we were together for 4 years and I had to come for my kids and my Mom and had be be here and my Bridging Visa expired because I couldn’t come back with in the time, Saritha Aarumugam lost trust on me since I couldn’t make it and she moved on and I totally understand how hard it is being single and our long distance relationship didn’t worked out. But I have a good reputation in Sydney I have my own Company called My Design Sydney Pty Ltd, which I started by my hard work and I want to settle down there for my kids future, and one more important thing weather you know it in India me being Muslim have an Hindu partner is a big mistake in people’s eyes they call it as love Jihad and it’s become very hard for me and my kids to be here it’s life stake, I request you to grant me any kind of visa and allow me to work and study there and get me kids will be very thankful to you, I can give you in writing that I don’t need any kind of help from Centerlink to live, I will work there and take care of my kids. Kindly understand my situation and help”.

Consideration of claims and evidence

1. The issue in the present case is whether the applicant meets the requirements of clause 820.221(1).

Is the applicant sponsored?

1. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of decision the applicant is the spouse or de facto partner of an Australian citizen or permanent resident or eligible New Zealand citizen.

2. 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.

3. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa.

4. Given the evidence provided at hearing and in writing after the hearing, I am satisfied that the applicant is no longer being sponsored by Ms Aarumugam.

5. The applicant may satisfy clause 820.221 by meeting the requirements of at least one of the subclauses (2) and (3). These prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residence where the relationship with the sponsorship has ceased. These include the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children.  The Tribunal invited the applicant to provide information he believed may be relevant to these exceptions. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria in cl.820.221 (2)-(3).

6. Therefore, the Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the subclass 820 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for the visa.

7. Accordingly, for the reasons above, the applicant cannot satisfy the criteria in cl.820.221. 

decision

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

Linda Holub
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 subregulation (3).

1. 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.

2. 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).