Sam (Migration)
[2024] AATA 563
•22 March 2024
Sam (Migration) [2024] AATA 563 (22 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Viwath Sam
CASE NUMBER: 2118813
HOME AFFAIRS REFERENCE(S): BCC2019/6787941
MEMBER:Donna Petrovich
DATE:22 March 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa.
Statement made on 22 March 2024 at 2:06pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – criminal history – no Police Certificate from Singapore – relationship ceased – sponsorship withdrawn – allegation of family violence – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221, 820.223; Schedule 4, Public Interest Criterion 4001; rr 1.1, 2.03AACASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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).
The applicant applied for the visa on 20 December 2019 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 (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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.223 at the time of decision. This regulation requires that at the time of decision, the applicant satisfy public interest criteria (PIC), including PIC 4001 – 4004, 4007 and 4009. Further, the delegate’s decision references cl 2.03AA (1), (2) and (3) in finding that cl 820.223 was not met at the time of decision by the applicant.
The Department decision indicates that the delegate requested on multiple occasions that the applicant provide a Police Certificate from Singapore for his continuous time spent there from 2014 to 2017. The delegate first wrote to the applicant requesting this Police Certificate on 22 December 2020. As the required Police Certificate was not supplied, the delegate wrote to the applicant on 2 more occasions, being 22 January 2021 and 13 May 2021 requesting the outstanding document.
According to the Department decision, the applicant did not respond to their requests and at the time of the delegate’s decision the police certificate from Singapore had not been supplied within time.
It was the finding of the delegate that cl 2.03AA(2) was not satisfied as the police certificate from Singapore requested under this provision was not supplied evidencing that the applicant met PIC 4001. Further, the delegate found that there was no basis to waive the requirement that the police certificate from Singapore be supplied by the applicant pursuant to cl 2.03AA(3).
The delegate determined that the absence of the requested police certificate from Singapore, meant that cl 2.03AA(2) was not satisfied. Without this police certificate and with no basis to waive the request in accordance with cl 2.03AA(3), the delegate found that PIC 4001 and cl 820.223 were not satisfied at the time of decision.
Background
The applicant is a 32 year old Cambodian man, currently working as a farm labourer in NSW. He commenced a relationship with Ms Daneth Pham who sponsored his application for 820 Partner (Temporary)(Class UK) visa.
In late 2021 the couple’s relationship broke down, and the sponsor withdrew sponsorship. The relationship became acrimonious after the sponsor called the police who took the applicant to the police station.
At the hearing the applicant could not provide details about the incident and he was unsure if any action was taken by the police. He told the Tribunal that he received some papers, but he was unsure what they meant or whether an intervention order was in place. The applicant told the Tribunal at the hearing that the police had instructed him not to contact the sponsor or her family.
The applicant appeared before the Tribunal on 20 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Khmer and English languages.
For the following reasons, the Tribunal has concluded that the matter under consideration should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in the present case are whether, at the time of decision, the applicant is in genuine and continuing relationship with the sponsor and satisfies PIC 4001 and cl 820.223.
SPOUSE/DE FACTO (cl 820.211(2)(a), (3)(e), (4)(e), (5)(e), (6)(d), cl 820.221)
Whether the parties are in a spouse or de facto relationship
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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.
‘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.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The couple married in NSW on 19 December 2019 in NSW. A copy of their Marriage Certificate and photographic evidence of their wedding appears in the Department file.
On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
The applicant told the Tribunal at the hearing that the relationship between the couple broke down after an altercation between them, resulting in the police being called and him being taken away. The Tribunal heard that when the police released him, they told him that he was to have no further contact with the sponsor or her family.
Based on the evidence, the Tribunal is uncertain if the sponsor put in place an intervention order against the applicant. However, the Tribunal is satisfied that the couple’s relationship broke down in the later part of 2021. The applicant could not provide a timeframe, other than the year that their relationship ended.
The Tribunal heard that after the incident involving the police, the applicant continued to live at their property and the sponsor moved in with her parents. The couple did not live together or see each other again after this incident.
The couple do not maintain contact and their relationship has become acrimonious.
The applicant stated that the sponsor made claims against him in the community which have impacted his reputation, their relationship has not been able to be reconciled and they do not see each other.
There are no children of the relationship. The applicant told the Tribunal during the hearing that the sponsor had aborted a child of the relationship.
Although the abortion claim was made during the hearing, there is conflicting evidence in the file that a child of the relationship had spontaneously miscarried at 13 weeks. This appears in a relationship statement and a medical certificate previously provided in evidence. Regardless, the Tribunal accepts that there is no child of the relationship and therefore gives no weight in favour of the applicant.
At the hearing, the applicant provided testimony that the Department has been notified of the cessation of the couple’s relationship and the sponsorship withdrawal by Joshua Strutt, Senior Solicitor of IARC (Immigration Advice and Rights Centre). According to the applicant, Joshua Strutt was not acting as a Registered Agent. Rather, he was simply assisting him by advising the Department that the couple’s relationship had ended and detailed the claimed family violence experienced by the applicant during the couple’s relationship.
The Tribunal was not provided with either Judicial or Non- Judicial Family Violence evidence to support family violence claims during the hearing. There was some discussion by the applicant regarding financial abuse. But this was not substantiated by the provision of evidence. There were other submissions about family violence where the applicant was detained by the police after an alleged incident. However, there was no evidence (other than the hearing testimony) to substantiate this claim.
Therefore, the Tribunal does not accept the claim of family violence against the applicant. There is insufficient evidence to satisfy the Tribunal of the claim. The Tribunal places no weight in favour of the applicant.
Having considered the evidence, the Tribunal finds that the applicant does not meet cl 820.221 at the time of decision as the sponsor has withdrawn sponsorship and the couple’s relationship has ceased. The Tribunal places no weight in favour of the applicant, finding that the relationship is not genuine and ongoing at the time of decision.
In relation to the public interest criteria, the applicant did not provide the requested Police Certificate from Singapore at the Tribunal hearing. The applicant claimed that he was unable to travel to Singapore to obtain the required certificate. Further, as his Singaporean Identity card has expired, the applicant claimed that he was unable to obtain the Police Certificate on- line.
The Tribunal does not accept the evidence provided by the applicant in relation to his inability to obtain a Police Certificate for his time spent in Singapore. It is implausible, in the Tribunal’s view, that he was unable to obtain the required Police Certificate. The applicant had significant time prior to the relationship ending to make other arrangements to obtain the Police Certificate and he has not progressed the matter since that time. When asked when he proposed to finalise his Police Certificate application, the applicant told the Tribunal he would pay for it that night (being the evening after the hearing).
In considering the evidence the Tribunal has taken into consideration the limited written English abilities of the applicant. The Tribunal acknowledges that his limited English may have created some difficulties for the applicant. However, due to the amount of time that has lapsed since the Department’s first request for the Police Certificate, the Tribunal remains unsatisfied of the applicant’s intention to provide it and holds serious concerns about his genuine intentions.
The Tribunal does not accept that the applicant could not have sought assistance enabling him to resolve this matter. On this basis the Tribunal places little weight in favour of the applicant in this regard.
On the basis of the above, in circumstances where the couple’s relationship has broken down, the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of this decision.
Therefore, at the time of decision, the applicant does not meet cl 820.221 of the Regulations.
Also, as the applicant has not provide the Police Certificate relating to his time in Singapore, the Tribunal finds that he does not satisfy 2.03AA(2). It is the finding of the Tribunal that there is no basis to waive cl 2.03AA(2), and conclude that it is unreasonable to require the applicant to comply with the request to supply the Police Certificate from Singapore, in accordance with 2.03AA(3).
Consequently, the Tribunal finds that PIC 4001 and cl 820.223 are not met by the applicant at the time of decision.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) (Subclass 820) visa.
Donna Petrovich
MemberATTACHMENT - 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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