Singh (Migration)

[2021] AATA 1563

Singh (Migration) [2021] AATA 1563 (7 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prabjinder Singh

CASE NUMBER:  1806877

HOME AFFAIRS REFERENCE(S):          BCC2016/912595

MEMBER:Donna Petrovich

DATE:7 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 07 April 2021 at 10:48am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – not a genuine relationship – permanently separated – no children – no mutual commitment or support – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994, Schedule 2, cls 820.211(2)(a) and 820.221, rr 1.03, 1.09A(3), 1.20J, 1.20KA, 1.20KC

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 5 March 2016 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(2)(a) and 820.221 because the delegate was not satisfied that the couple provided sufficient evidence to support their claim that they were in a genuine and continuing and committed spousal relationship.

4. The applicant appeared before the Tribunal on 17 March 2021 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, 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 video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant and the sponsor remain married in a committed relationship to the exclusion of all others. The applicant told the Tribunal that the couple were separated approximately two years ago in December 2019.  They no longer reside together, and the applicant told the Tribunal that there is no prospect of reconciliation and that he will commence divorce proceeding next month.  The Tribunal asked if there were any children as a result of the relationship and the applicant told the Tribunal that there were no children.

   Whether the parties are in a spouse or de facto relationship

7. 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.

8. ‘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: s 5F(2)(a).

   Are the parties validly married?

9. On the evidence, the parties were not married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a). This is based on the evidence provided by the applicant that the parties were separated and have been so for two years, that they do not live together, and have no mutual commitment to a shared life to the exclusion of others, and that they no longer live together and have not done so for some time.  The couple do not have a continuing relationship.  As the couple are now permanently separated and about to commence Divorce proceedings, the Tribunal finds that they are not validly married and in considering this the Tribunal places no weight in favour of the applicant in this regard.

   Are the parties in a de facto relationship?

10. As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a married relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s 5CB of the Act. A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

11. In forming an opinion whether they are in a de facto relationship, consideration must be given 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 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Financial aspects of the relationship

12. The Tribunal heard from the applicant that there was no financial relationship since the couple had separated and that they have separated their finances and are about to enter divorce proceedings. The Tribunal has considered the evidence provided and places no weight in favour of the applicant in this regard.

    Nature of the household

13. The applicant and sponsor live separately and as a result the conditions for which the visa were granted no longer exist, they have not shared a household or lived together for over two years and do have a mutual commitment to a shard life together to the exclusion of all others, the relationship is not genuine and has not continued and the couple live separately. The Tribunal heard there was no chance of reconciliation. In considering these circumstances the Tribunal can place no weight in this regard in favour of the applicant.

    Social aspects of the relationship

14. The Tribunal heard that the applicant and sponsor do not see each other or speak to each other, and they do not interact with each other in any way.  On this basis the Tribunal cannot give favourable consideration to the applicant and can give no weight in favour.

    Nature of the person commitment to each other

15. The Tribunal heard that the applicant first came to Australia as the holder of a Student visa (subclass 573) which ceased on 16 April 2016 and was granted a bridging visa (subclass B) on 27 July 2017.  The applicant departed Australia to travel to India on 13 August 2017 and returned to Australia on 25 September 2017. On 29 September 2015, the applicant married the sponsor, an Australian citizen born on 21 April 1983. The Tribunal heard that they had lived together and have subsequently separated and lived apart since December 2019. The Tribunal asked the applicant if there was any communication between the two, or if they had any chance of reconciliation, and heard from the applicant that this was unlikely, and that he would be filing for divorce in the next month or so.  The Tribunal finds that the relationship has broken down and it appears that the couple have no ongoing commitment to each other.  On this basis and considering the evidence provided by the applicant at the hearing the Tribunal places no weight in favour of the applicant

    Any other circumstances

16. The Tribunal in assessing all of the evidence finds there are no other circumstances to be considered and places no weight in favour of considering discretion not to cancel.

    Whether the parties are related by family

17. There was no evidence before the Tribunal of a family relationship between the sponsor and the applicant, therefore the Tribunal cannot consider this.

18. On the basis of the above, the Tribunal is not satisfied that the requirements of s 5CB(2) are met at the time of this decision.

19. Therefore, the applicant does not meet cl 820.211(2)(a) or cl 820.221.

    Is the applicant sponsored?

20. Clause 820.211 requires at the time of application the applicant meets one of several alternative sub criteria. These include 820.211(2)(c) which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18 or, where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

21. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. 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.

22. 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. There are further limits imposed by reg 1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010, and reg 1.20KC for sponsors convicted of a relevant offence who have a significant criminal record in relation to the relevant offence where the visa application was made on or after 18 November 2016.

23. The applicant is a 28 year old man who came to Australia from in India, he commenced studies until his visa ceased on 16 April 2016.  He and the sponsor were married on 29 September 2015.  The applicant appeared at the hearing to appeal the Department’s decision. He was not represented, provided no additional information and was not supported by any witness.  He told the hearing that he had not lived with the sponsor for two years and the relationship had broken down and was now unreconcilable.  He told the Tribunal that he would be filing for divorce in the next month. The Tribunal in considering the circumstances views that the relationship has ceased and therefore the applicant has not continued to be sponsored by the sponsor, as there are no exceptions in this case. The Tribunal is unable to place any weight in favour of exercising discretion not to cancel based on the evidence provided by the applicant.       

24. On the evidence before the Tribunal, the requirements of cl 820.211(2)(a) and cl 820.221 are not met.

25. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Donna Petrovich
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.09A     De facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
    Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).