Rana (Migration)

[2018] AATA 2723

Rana (Migration) [2018] AATA 2723 (29 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Singh Rana

CASE NUMBER:  1731986

DIBP REFERENCE(S):  CLF2013/52423

MEMBER:Justin Owen

DATE:29 June 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 29 June 2018 at 12:26pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Spouse or de facto partner – Cessation of relationship – Sponsor left the relationship – Withdraw sponsorship – Allegations of family violence – No evidentiary documentation of family violence – Decisions under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 359A
Migration Regulations 1994 (Cth), rr 1.22, 1.23, 1.24, 1.25, 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 30 November 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 applied for the visa on 12 March 2013 on the basis of his relationship with his sponsor. At that time, 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). 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. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the applicant was not, at the time of decision, the spouse (as defined under section 5F of the Act) or the de facto partner (as defined under section 5CB of the Act) of the sponsoring partner. The delegate also found that the applicant did not meet or claim any of the exceptions of subclauses 801.221 (2A), (3), (4), (5), (6) or (8). Relevantly to this matter the primary criteria include cl.801.221 of Schedule 2 to the Regulations.

3. The Tribunal received from the applicant a valid application for review on 18 December 2017. 

4. The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Departmental decision record provided by the applicant to the Tribunal. 

5. On 23 April 2018 the Tribunal wrote to the applicant pursuant to sections 359A and 359(2) of the Act inviting him to comment on or respond to information by 7 May 2018.

6. The applicant responded on 7 May 2018 providing a submission and other written documentation to the Tribunal.

7. The particulars of the information were that the applicant had made an application for a Partner visa. It was pointed out that it is a requirement for the grant of that visa that at the time when the application is made, and at the time of the decision, the applicant was the spouse or de facto partner of the sponsoring partner, unless one of the exceptions applies.   The Tribunal pointed out that information in the decision record provided by the applicant indicated that his relationship with the sponsoring partner has ended.

8. The Tribunal pointed out that the information was relevant as the Tribunal may conclude that at the time of this decision, the applicant was no longer the spouse or de facto partner of the sponsor. The Tribunal stated that if it was not satisfied that the applicant was the spouse or de facto partner of the sponsor, and if he did not meet any of the alternative criteria for the grant of the visa, the Tribunal may conclude that he did not meet the requirements for the grant of the visa for which he had applied.

9. The applicant was invited to give comments on or respond to the above information in writing.  He was also invited to provide in writing any claims he wished to make as to the exceptions under which he could be granted the Partner visa. These included 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 that he believed may be relevant to these exceptions.

10. The applicant appeared before the Tribunal on 18 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

11. The applicant was represented in relation to the review by his registered migration agent.

12. At the hearing the applicant spoke about his relationship with the sponsor.

13. The Tribunal noted that information on the Departmental record supplied by the applicant to the Tribunal indicated that the applicant’s relationship with the sponsor had ended.  The applicant agreed at the hearing that the relationship had concluded.   The Tribunal notes the applicant’s written submission to the Tribunal states that the applicant has not been in contact with the sponsor since she left the house on 17 December 2016 and she formally advised the Department about the cessation of the relationship on 11 January 2017.  The applicant agreed in oral evidence to the Tribunal hearing that his relationship with the sponsor had ceased. 

14. The applicant said to the Tribunal that he had been with the sponsor in a relationship for four years. He said he had been told that he only had to be in a relationship for three years and then the visa would be granted.  He said he met the criteria at that time.  His statutory declaration of 18 January 2017 reflects this view stating ‘I believe my relationship as per law has been proven and which completed all requirement to department to consider me for a permanent visa.’  (T1, Folio.41).  He said in oral evidence that now with the refusal of his visa he had essentially wasted four years. The Tribunal pointed out to the applicant that the Partner visa is based upon the applicant’s relationship with the spouse both at the time he applied for the visa as well as at the time of decision  unless one of the specific exceptions under the Act.   The applicant he said he understood this. 

15. The applicant also said to the Tribunal that he had done nothing wrong in terms of the relationship. The sponsor had left him and he had tried to keep the relationship alive.  He asked why he should be penalised.  He said that the law should be changed.  He said that he had also came to the Tribunal to advocate a change for the future – that when someone had spent such an extensive time with their sponsor then it should be taken into consideration for the grant of the visa.   The Tribunal said that it understood the applicant’s frustration and acknowledged his views on this matter.      

16. The applicant said that the sponsor had not filed for divorce but he thought he would have to do so from his side.  He did not know where the sponsor now lived.  The applicant also raised concerns he held with the sponsor’s claims to the Department concerning a previous statutory declaration to the Department.  The Tribunal said the issues for the Tribunal remained that there was agreement that the relationship with the sponsor had ceased and, since there was no longer a relationship, whether any of the exceptions applied for the grant of the Partner visa.    

17. The Tribunal asked the applicant a range of questions about the relationship and its break-up.  The applicant gave an account of the history of his relationship with the sponsor that was consistent with his previous claims to the delegate.  He pondered whether she was in a new relationship.  He said that if his visa refusal was affirmed he would have to return overseas.  He said that both his parents had died in recent years and he had nothing left in India to return to.       

18. Clause 801.221 subclause (1) of the Regulations requires that the applicant must, at the time of decision, satisfy subclause (2), (2A), (3), (4), (5), (6) or (8) of clause 801.221. Relevantly in this case, 801.221 subclause (2) requires that the applicant remains the spouse (as defined under section 5F of the Act), or de facto partner (as defined by section 5CB of the Act) of their sponsoring partner at that time. As the sponsoring partner has withdrawn sponsorship as evidenced in the delegate’s decision record and confirmed by the applicant both in his written submission and in oral evidence to the Tribunal, the applicant in this case no longer continues to be sponsored for the grant of the visa by his sponsoring partner. The applicant does not satisfy cl.801.221(2).

19. The applicant supplied the Tribunal with a number of documents pertaining to his relationship with the sponsor. These included a statutory declared dated 31 January 2017 signed by the applicant concerning the genuineness of statutory declarations lodged with the Department concerning his relationship with the sponsor in October 2015 and May 2016; and correspondence addressed to the sponsor from the Australian Electoral Commission, Concord Hospital and the ANZ Bank. These documents were previously provided to the Department. This documentation does not substantiate that the relationship between the applicant and sponsor is ongoing at the time of decision. The oral evidence and the submission of the applicant to the Tribunal confirm that the relationship between the applicant and the sponsor has ended. The applicant does not satisfy cl.801.221(2).

20. The applicant may satisfy clause 801.221 by meeting the requirements of at least one of the subclauses (3), (4) (5) and (6). 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 and evidence he believed may be relevant to these exceptions.

21. The applicant in oral evidence mentioned the family violence exception.  He said the sponsor had broken items in the house. In discussing the family violence claim at the hearing the applicant said he had no proof of family violence and had not been to the Police. The claim was reflected in his submission of to the Tribunal where he said in the response to the Department’s natural justice letter of 31 January 2017 where he had explained that he had been bullied by the sponsor.  The submission through his representative said that the sponsor was a ‘short tempered and violent woman’ who used ‘abusive language’ and was ‘threatening.’  No corroborative evidence was submitted through the representative or by the applicant directly in support of the claim.

22. The issue that arises on the evidence in this case however is whether the applicant has suffered family violence committed by the sponsor, within the meaning of the Regulations.

23. Division 1.5 of the Regulations contains the substantive provisions relating to family violence and sets out the evidentiary requirements for a claim of this nature. Under r.1.22 a reference to a person having suffered or committed family violence is a reference to a person being taken under r.1.23 to have suffered family violence. The applicant is required to provide the necessary evidence in order to establish a valid claim of family violence under Regulation 1.24(b) of the Migration Act. No ‘evidentiary’ documentation has been provided to the Tribunal by the applicant in support of the claim. The claims of the applicant concerning the sponsor in oral evidence and in his written submissions do not in themselves make a valid claim of family violence.

24. The Tribunal has provided the applicant with the opportunity to provide appropriate evidence in order to make a valid claim. The applicant has representation. The applicant has not provided evidence in the nature and form required to make a valid claim of judicially determined, or non-judicially determined family violence. This is because the applicant has not provided a statutory declaration as required: r.1.25 and has not provided evidence specified by the Minister by instrument in writing for r.1.24(b) of the Migration Regulations 1994.

25. The applicant did not make any claim any of the exceptions in relation to the death of the sponsor or court orders or responsibilities in relation to children.  There is no evidence or suggestion before the Tribunal that he meets any of these criteria. 

26. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria cl.801.211 (2A) and (8) which rely on specific procedural scenarios that do not apply in this case.  

    FINDINGS     

27. The Tribunal is satisfied that at the time of decision the applicant does not continue to be sponsored for the grant of the subclass 801 visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicant for that visa: cl.801.221 (2).

28. The Tribunal is not satisfied that the applicant meets any of the alternative criteria: cl.801.221 (2A), (3), (4), (5), (6) or (8).

29. Accordingly, for the reasons above, the applicant cannot satisfy the criteria in cl.801.221 (1).

    DECISION

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

    Justin Owen
    Senior 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).

    (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).