Singh (Migration)

[2021] AATA 1083

Singh (Migration) [2021] AATA 1083 (12 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspinder Singh

CASE NUMBER:  1729142

HOME AFFAIRS REFERENCE(S):          CLF2012/23146

MEMBER:Helen Kroger

DATE:12 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 12 April 2021 at 2:09pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – genuine and continuing relationship – anonymous allegation of contrived relationship – no appearance at hearing – applicant departed Australia, bridging visa expired and no right of return – must be in Australia when visa is granted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 40, 65, 375A, 359A
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cls 820.211, 820.411

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 and Border Protection 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 6 February 2012 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 on the basis that the applicant was not in a spousal relationship with his sponsor.

4. The applicant applied for a review of the delegate’s Decision record and the Tribunal affirmed the delegate’s decision on the 2 December 2014. This decision was appealed to the Federal Circuit Court of Australia and the Court found in favour of the applicant on 16 November 2017,  on the basis that a jurisdictional error had occurred as the existence of a s.375A certificate had not been disclosed to the applicant in the course of the review, and that some of the documents subject to the certificate were relevant or potentially relevant to the review.

5. The applicant provided a copy of the delegate’s Decision record and a copy of the Federal Circuit Court’s Order to this Tribunal for the purpose of its review.

6. A separately constituted Tribunal invited the applicant to a hearing on 12 April 2021 as a decision could not be made on the papers before it. The hearing was conducted via teleconference in accordance with the Act and the applicant was invited to participate via telephone as he is living in India.  The applicant did not show up for the hearing. The Tribunal made seven unsuccessful attempts to call the applicant. No reason was given for the applicant’s non-attendance.

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

   Consideration of claims and evidence

8. The issue in the present case is whether the applicant satisfies the requirements of the Regulations for the grant of a subclass 820 visa.

9. In the Decision record of the Department, which was provided to the Tribunal by the applicant, the Department indicated:

   “I have examined the evidence you provided in relation to the provisions under regulation 1.15A and consider that it is not sufficient to demonstrate that you are in a genuine and continuing relationship. Accordingly, I find that you are not the spouse or sponsor, as defined under section 5F of the Migration Act.”

10. The previously constituted Tribunal considered the claimed spousal relationship according to the criteria as set out in r.1.15A, held a hearing on the 4 April 2016 to further consider submissions and in its decision, dated the 5 April 2016, affirmed the decision made by the Department. The applicant appealed this decision to the Federal Circuit Court of Australia. In the decision set down by the Federal Circuit Court, the Court noted that the applicant had been denied procedural fairness and that this constituted jurisdictional error, as the Tribunal had not disclosed the existence of a s.375A certificate.

11. This separately constituted Tribunal wrote to the applicant on 23 September 2019 pursuant to s.359A of the Act, to notify the applicant of a non-disclosure certificate made pursuant to s.375A of the Act, which was issued by the Department of Home Affairs dated 27 August 2019. A copy of the certificate was attached. The Tribunal advised the applicant that in a preliminary review, it considered the certificate to be valid. The certificate means that the Tribunal may, for the purposes of its review of the refusal of the applicant’s visa, have regard to any matter contained in the documents that are subject to the certificate issued in accordance with s.375A of the Act but cannot disclose those documents to the applicant.

12. This Tribunal invited the applicant to comment on or respond to information that the Tribunal set out in its notice, relevantly, that the relationship was contrived and that the visa applicant and the sponsor knowingly entered a contrived relationship for money through the assistance of a migration agent and a celebrant who has a personal relationship to the migration agent. The applicant was invited to respond by 7 October 2019.

13. On the 3 October 2019, the applicant requested an extension of 2 weeks as he claimed that he had just returned from a visit to India, that he was seeking to appoint a migration lawyer and that he was collecting the necessary documents. The Tribunal granted an extension of two weeks with a response date of 14 October 2019. The Tribunal received the following response from the applicant on the 14 October 2019 :

    Hello. Its jaspinder singh. I do not have any more documents to provide you. I would like to get a hearing date. Will be very thankful.

14. In his response to the hearing invitation for the 12 April 2021, the applicant indicated the following:

    Hello. I am currently overseas and living away them from last 14 months. We have not much communicated from last 3-4 months and result she start talking about divorce. I applied for travel exemption but it was denied. I really don’t know what gona (sic) happen. We are going to divorce or staying together. Because my visa already expired last year. So I cant travel back until Australians government remove the border restriction or I get new visa for travel. All my documents in Australia. So I have only 2 options 1. You can extend the hearing date until I come back or if we divorce I let you know to withdraw the file 2 I can withdraw my file now.

15. In the written statement above, the applicant states that he has no visa entitling him to return to Australia, and therefore has no plans to return to Australia in the near future. He also claims that that the sponsor is ‘talking’ about a divorce. Whilst this statement speaks to the nature of the parties’ relationship,  the Tribunal has not made a finding on the genuineness and continuing nature of the parties’ relationship as there is another issue which must be considered in this case.

16. The Tribunal has reviewed the Department’s movement records to confirm the applicant’s claim, as set out above, and these records indicate that he last departed Australia on 31 December 2019 on a Bridging Visa B. This bridging visa, a WB-020, was granted on 12 August 2019 and ceased on 12 August 2020. Once a visa holder has left Australia, the holder is not able to return unless the holder has another substantive visa.

17. The Tribunal proceeded with the hearing via teleconference and the Tribunal was unsuccessful in multiple attempts to connect with the applicant via telephone. The Tribunal has considered the applicant’s submission as set out above, that indicates that he has been living offshore for a period of 14 months and that his visa has expired.

18. The Tribunal is satisfied therefore that at the time of this decision, the applicant is outside Australia and is unable to return.

19. The legal basis for the grant of visas is found in s.65 of the Migration Act, which provides, so far as is relevant, as follows:

    65. (1) After considering a valid application for a visa, the Minister:

    (a) if satisfied that:

    (i) the health criteria for it (if any) have been satisfied; and

    (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and

    (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

    (iv) any amount of visa application charge payable in relation to the application has been paid;

    is to grant the visa; or

    (b) if not so satisfied, is to refuse to grant the visa.

    20.      Section 40 of the Act provides:

    40 (1) The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

    (2) Without limiting subsection (1), the circumstances may be, or may include, that, when the person is granted the visa, the person:

    (a) is outside Australia; or

    (b) is in immigration clearance; or

    (c) has been refused immigration clearance and has not subsequently been immigration cleared; or

    (d) is in the migration zone and, on last entering Australia:

    (i) was immigration cleared; or

    (ii) bypassed immigration clearance and had not subsequently been immigration cleared.

20. The Tribunal notes that cl.820.411 provides as follows:

    820.411 The applicant must be in Australia, but not in immigration clearance, when the visa is granted.

21. Unfortunately for the applicant, therefore, the fact that he is outside Australia and has no right of return to Australia means that he cannot meet the requirements of cl.820.411.

22. It is not necessary for the Tribunal to consider whether the requirements of the Act and Regulations in relation to spousal relationships are met, as the Tribunal is satisfied that the provisions of s.40 and s.65 of the Act operate to prevent the grant of the visa to the applicant. For these reasons, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Helen Kroger
    Member