Siddiqui (Migration)

[2018] AATA 5837

Siddiqui (Migration) [2018] AATA 5837 (15 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hafiz Muhammad Moazzam Siddiqui

CASE NUMBER:  1802338

DIBP REFERENCE(S):  BCC2016/428132

MEMBER:Justin Owen

DATE:15 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 15 November 2018 at 3:04pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship with sponsor has ceased – claim of family violence – emotional and physical abuse – insufficient evidence submitted – claimed child of the relationship – negative DNA test – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), rr 1.22, 1.23, 1.24, 1.25; Schedule 2, cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 10 January 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 January 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner).

3. 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.

4. The delegate in this case refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because they were not satisfied the visa applicant was not, at the time of application, 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. 

5. The applicant appeared before the Tribunal on 8 November 2018 to give evidence and present arguments.  The Tribunal was conducted with the assistance of an interpreter in the Urdu and English languages. 

6. The applicant was represented in relation to the review by his registered migration agent. The registered migration agent as well as an employee of the registered migration agent attended the hearing. 

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

   ISSUE

8. Relevantly in this case, at the time of decision, to be granted a Subclass 820 visa, the applicant must continue to be sponsored by his sponsoring partner (expect where exceptions apply).

   EVIDENCE

9. The applicant told the Tribunal that the relationship with his sponsor had ceased. He said that the relationship ended in February 2017 after his return from Pakistan.

10. The Tribunal sought to determine whether circumstances existed in which the applicant may continue to be considered for the grant of visa.

11. The applicant confirmed the sponsoring partner is not deceased.

12. The Tribunal asked whether there were any children from his relationship with his former sponsor.  The applicant stated that there was one child on the relationship with his former sponsor.

13. The Tribunal asked whether the applicant had any claim in regards to relevant family violence perpetrated against himself by the sponsor. In response to the Tribunal’s question he said he wished to claim the family violence exception. 

    FINDINGS

14. 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.  Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved.

15. As the sponsoring partner has withdrawn sponsorship as evidenced in the delegate’s decision record provided by the applicant and by the applicant in his 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 who in this case is an Australian citizen, who sponsored the applicant for that visa.  Accordingly, at the time of decision the applicant does not continue to satisfy the criteria in cl.820.221(1).

16. 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 sponsor has ceased.  These include the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children.

17. The Tribunal sought to determine whether circumstances existed in which the applicant may continue to be considered for the grant of visa.  The Tribunal noted the written submission provided by the applicant dated 8 May 2018 (T1, Folio.29-31).  At the hearing the Tribunal invited the applicant to make a claim and provide any information he believed may be relevant to these exceptions. 

18. The applicant in response to the Tribunal’s questions stated that the sponsor was not deceased. Accordingly, at the time of decision the applicant does not meet the alternative criteria in cl.820.221(2).  

19. The applicant in oral evidence said that there was a child in the relationship.  The Tribunal notes the applicant’s previous claims to the delegate concerning a child and the considerable efforts he went to to seek evidence of this, including the initiation of proceedings in the Local Court of NSW.  The Tribunal has taken account of his written submissions of 8 May 2018 to the Tribunal concerning a potential child of the relationship between the applicant and the sponsor.  The applicant said that he last saw the baby on 27 March 2017 in Auburn when he had happened to come across the sponsor.  He said he was able to hold the child but the sponsor told him that he was not the father of the child.  The applicant spoke in some detail about the child and his relationship with the sponsor.  He claimed that when the sponsor became pregnant she had told him that he was the father of the child.  He said the story changed when he returned from Pakistan and the sponsor contacted him through her solicitor to say the child was not his. 

20. The applicant said in oral evidence that DNA testing was eventually carried out where it was found that the applicant was not in fact the father of the sponsor’s child.  On the evidence before the Tribunal, the applicant is not the father of the child.  The Tribunal understands the applicant’s disappointment, as expressed both in his written submission and in oral evidence, that he is not the father of the child after believing that he was a biological parent.  Nevertheless on the evidence before it the applicant is not the father of the sponsor’s child.  He has confirmed there is no access, maintenance obligations or custody arrangements in place concerning the sponsor’s child and himself.  Accordingly, at the time of decision the applicant does not meet the alternative criteria in relation to children: cl.820.221(3)(b)(i). 

21. 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. 

22. The Tribunal notes that the current instrument IMMI12/166 specifies any consideration of a claim of non-judicial family violence requires that that a minimum of two different types of evidence be given along with a statutory declaration of the alleged victim.        

23. At the hearing the Tribunal discussed the making of a formal claim of family violence.  The Tribunal stated that for it to consider a formal claim of family violence then it must be presented and submitted in the required form.  The Tribunal told the applicant that certain documents in certain forms are required and provided some examples.  The Tribunal said that if these were not provided then it could not consider a family violence claim.  The Tribunal notes that the applicant had two representatives in attendance at the hearing. 

24. The Tribunal has taken account of the applicant’s written submission through his representative of 8 May 2018.  (T1, Folio.29-31).  In the submission the applicant claimed from March 2016 until about January 2017 he suffered ‘continuous threats, intimidation, abusive conduct’ perpetrated by the sponsor that amounted to family violence.  The applicant has claimed the sponsor’s alleged conduct ‘caused him to fear and/or be reasonably apprehensive about his own wellbeing and safety.’ He claimed emotional and physical abuse and as a result has claimed to suffer anxiety and depression.   

25. The Tribunal asked the applicant what was the first incidence of family violence; what were the other incidents of family violence; and what evidence did he have to support his claims. 

26. The applicant said the first incidence was in April 2016.  He alleged the sponsor was very argumentative and he had been burned with oil.  He said that various incidents that constituted family violence occurred on a very regular basis.  The applicant said the sponsor was violent and aggressive.  He said that she would demand sexual intercourse then throw him out of the room after the act.  He said she was very physical towards him and would attack him.  He said he would be thrown out of the house.  The Tribunal notes the claim in the applicant’s written submission where his representative wrote that ‘our client states during the period from March 2016 till about January 2017 he suffered continuous threats, intimidation and abusive conduct by the sponsor that amounted to family violence.  The applicant claims to have feared for his wellbeing and safety.  The conduct of the sponsor, it is alleged caused the applicant anxiety and depression (T1, Folio. 29-31).      

27. The Tribunal asked, given the nature of these allegations, if he ever reported any of this to the Police.  He said he did not.  He said he was too scared to discuss his allegations with anyone.  The applicant claimed that he thought the Police would not listen to him.

28. Given his claims of being burned by the sponsor the Tribunal and other physical attacks, the Tribunal asked if he had seen a doctor or ever sought medical assistance and if there was evidence of such.  The applicant said he had not sought medical assistance but had looked after treating this himself.  No other corroborative evidence was provided in support of the allegations of family violence beyond the submissions provided by the applicant’s psychologist Mr Bill Singh. 

29. The applicant said he had commenced seeing a consultant psychologist, Mr Bill Singh in 2017 as a result of the sponsor’s alleged actions and has seen him regularly since this time.  Dated 27 September 2017, Mr Singh provided the delegate with a detailed psychological report and recommended six months to a year of psychological counselling. (D1, Folio.96-101)  At the hearing the applicant presented a psychological progress report dated 7 November 2018.  The psychologist Mr Singh updated the treatment plan, stated the applicant has been a client of his since 17 May 2018 and attends monthly appointments. (T1, Folio.43).

30. The Tribunal asked the applicant if he had any other evidence he wished to put before the Tribunal concerning his family violence claim.  The applicant said in oral evidence that he had given whatever he had.  The applicant has not provided any further evidence between the hearing and the time of decision.

31. The applicant had two representatives attend the hearing.  The Tribunal notes the oral submissions of his representative at the hearing concerning the claims of family violence, the alleged impact these have had upon the applicant as well as the corrosive effect discovering he was not the father of the sponsor’s child had upon him.    

32. The Tribunal has provided the applicant with the opportunity to provide appropriate evidence in order to make a valid claim of family violence. The Tribunal has provided a reasonable period of time to do so. The Tribunal wrote to the applicant over six months ago inviting him to provide information that he believed may be relevant to the exceptions such as family violence.   The applicant has provided a psychologist’s report and updates from Mr Bill Singh.  The Tribunal accepts that this specific piece of evidence from Mr Singh is a type of evidence specified in the relevant instrument. 

33. The applicant however has not provided further 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 evidence specified by the Minister by instrument in writing for r.1.24(b) of the Migration Regulations 1994 and as specified in Schedule 1 of the instrument IMMI 12/116. He has not made a valid statutory declaration under r.1.25. He has furthermore failed to provide the evidence specified by the Minister by instrument in writing for r.1.24(b) of the Migration Regulations 1994 and as specified in Schedule 1 of the instrument IMMI 12/116 which requires a minimum of two items of evidence (and not more than one of each type of evidence). He has only lodged the one item of evidence that meets the criteria of a valid claim, the psychologist’s reports from Mr Singh. The applicant’s claim of family violence is not a valid claim. Even if the applicant has not gone on to provide the Tribunal with a second ‘type of evidence’ as specified under the relevant Schedule 1, the applicant has still failed to provide a valid statutory declaration under r.1.25.

34. Given this evidence the applicant does not meet the alternative criteria in cl.820.221(3). 

35. On the basis of the applicant’s own evidence, and the evidence on the decision record provided by the applicant, 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 Partner visa by the sponsoring partner, who in this case is an Australian citizen, who sponsored the applicants for that visa

36. Accordingly the applicant cannot satisfy cl.820.221(1) 

37. At the time of decision the applicant has made neither a judicially determined or non-judicially determined claim of suffering family violence in accordance with r.1.23. Accordingly, the Tribunal has no valid claim to consider. The applicant cannot satisfy cl.820.221(3). 

38. Furthermore, on the evidence before the Tribunal, the applicant does not meet any of the other alternative criteria. 

39. For the reasons given, the Tribunal finds the applicant does not satisfy the criteria for the grant of the Partner (Migrant) (Class UK) visa.

    DECISION

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

    Justin Owen
    Senior Member