Singh (Migration)

[2021] AATA 1472

Singh (Migration) [2021] AATA 1472 (18 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpreet Singh

CASE NUMBER:  1809548

DIBP REFERENCE(S):  CLF2014/44977

MEMBER:Adrienne Millbank

DATE:18 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 18 March 2021 at 11:49am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse)– relationship ended with sponsoring partner –not a genuine spousal relationship –– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, 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 23 March 2018 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 is a 32-year-old national of India. He first arrived in Australia in 2009 on a Student (Subclass 572) visa. He was granted a further Student (Subclass 572) visa in 2011. He applied for this visa on 7 March 2014 on the basis of his relationship with his sponsor, an eligible New Zealand citizen. He was granted a Partner (Temporary) (Subclass 820) visa on 10 March 2015.

3. At the time of application, 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.

4. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2). Clause 801.221(2)(c) requires that an applicant is, at the time of decision, the spouse (as defined under s.5F of the Act) or de facto partner (as defined under s.5CB of the Act) of the sponsoring partner.

5. The delegate’s decision records that in the course of assessing the application, the Department conducted a social media search on 16 January 2018. The sponsor’s Facebook and Instagram pages revealed that she was in a romantic relationship with another person, a Mr Mitch Gottfried, and had been in a romantic relationship with Mr Gottfried since July 2017. The decision records that the applicant was invited to comment on that information on 22 January 2018, and that he responded on 19 February 2018. He stated that he was unaware of the sponsor’s relationship with Mitch Gottfried. He stated that he was in a genuine relationship with the sponsor until the end of May 2017. He provided evidence that he had maintained contact with the sponsor until June 2017.

6. The delegate found that the parties had not been cohabiting together, or been in a genuine and continuing relationship with each other, since June 2017. Therefore, the applicant was not the spouse or de facto partner (as defined) of the sponsor.

7. The applicant appeared before the Tribunal, by MS Teams video, on 10 March 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether, at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner.

10. No claim was made or information before the Tribunal to indicate that the applicant and his wife, the sponsoring partner, have resumed their relationship. At hearing, the applicant confirmed that they have not lived together since the relationship ended over the period May 2017 to June 2017, when sponsor moved out. He described how he was upset when the relationship, which was genuine, ended. He described how he and his former partner communicated with each other after she left, mainly about wrapping up their affairs. He stated that the last time he received a message from his former partner was in January 2019, when she advised him to ‘move on’. He stated that he has been living with friends, and was not in a relationship with anyone.

11. In a written statement provided to the Tribunal, and at hearing, the applicant described how he loved his former partner and suffered anguish when he realised that she wasn’t coming back; that she had ended their marriage, by leaving. The evidence provided supported that the parties were in a loving and caring relationship, when they were living together. The applicant was an open and compelling witness at hearing, and the Tribunal accepted his testimony.

12. The applicant acknowledged both in his written statement and at hearing, that he is not in a spousal relationship with the person who sponsored him for the visa, and that he has not been in a spousal relationship with the sponsor since June 2017. He stated that he was advised, when he applied for the visa, that the whole process would take three years. He pointed out that if the Department had, in fact, taken three years to process his application, he would have been granted the visa, as he was still in a spousal relationship with the sponsor in March 2017. He argued that ‘natural justice’ should be applied in his case. He stated that he has a good job (and liveable income) and good friends in this country, and ‘Australia is home for me’.

13. The applicant advised at hearing that so far as he is aware, the sponsor is still alive. He confirmed that he is not claiming to have suffered family violence committed by her.

14. The applicant is not the spouse or de facto partner (as defined) of the sponsoring partner. Therefore, he does not meet cl.801.221(2)(c). Therefore, he does not meet cl.801.221(2).

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

    DECISION

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

    Adrienne Millbank
    Member