Singh (Migration)

[2023] AATA 3131

Singh (Migration) [2023] AATA 3131 (22 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Navdeep Singh

REPRESENTATIVE:  Mr Bikkar Singh Brar (MARN: 0320569)

CASE NUMBER:  2214773

HOME AFFAIRS REFERENCE(S):          BCC2017/1343978

MEMBER:Rachel Westaway

DATE:22 September 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 22 September 2023 at 4:49pm

CATCHWORDS

MIGRATION – Partner (Migrant) (Class BC) visa – Federal Circuit Court remittal – Subclass 100 (Partner) – genuine and continuing relationship – validly married – relationship ceased allegation of a contrived relationship – no mutual commitment to a shared life – decision under review affirmed     

LEGISLATION

Family law Act 1975
Migration Act 1958, ss 5, 65, 359, 379
Migration Regulations 1994, Schedule 2, cls 100.111, 100.221; rr 1.09, 1.15

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 on 6 August 2019 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 11 April 2017 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 100.221(2) because at the time of decision the applicant had not provided evidence that they continued to be the spouse or de facto partner of the sponsor.

5. This matter was first heard before the Tribunal, differently constituted, in Case Number 1922517 which was lodged by the applicant on 14 August 2019. The Tribunal made a decision to affirm the decision of the Department on 25 February 2022 on the basis that the applicant failed to provide sufficient evidence to the Tribunal that they met the criteria in clause 100.221(2) of the Regulations. The Tribunal had written to the applicant under s.359(2) of the Act on 18 August 2021 to invite them to provide information in writing to indicate whether they continued to be the spouse of the sponsoring partner but had not received a response from the applicant.

6. The applicant filed for a review of that Tribunal decision with the Federal Circuit Court on 21 March 2022. The application was remitted by consent back to the Tribunal on 28 September 2022 on the basis that the Tribunal’s invitation under s.359A of the Act had not been sent to the applicant in accordance with s.379A because it was sent to the applicant by email in circumstances where he expressly did not consent to receiving documents from the Tribunal by email. The Court found that the error was material because there was a realistic possibility that, had the applicant been given the opportunity to comment on or respond to the information under s.359A of the Act, the Tribunal’s decision could have been different. This remitted application is the current review application under consideration, Case Number 2214773.    

7. On 7 October 2022 the Tribunal conducted outreach and confirmed the applicant’s contact details.

8. On 17 October 2022 the applicant appointed a migration agent to represent him and confirmed all correspondence to be sent via email.

9. On 12 April 2023 the applicant’s representative was sent an invitation for the applicant to attend a hearing and on 27 April 2023 the applicant was sent an SMS hearing reminder of his scheduled hearing on 28 April 2023.

10. The applicant was invited to appear before the Tribunal on 28 April 2023 to give evidence and present arguments.

11. The applicant did not attend the hearing at the allocated time.

12. The Tribunal is satisfied the applicant was notified appropriately of the date and time for the hearing and has failed to attend the hearing at the Tribunal.

13. Accordingly, the Tribunal has proceeded to make a decision on the papers.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant continues to be the spouse or de facto partner of the sponsoring partner to satisfy clause 100.221(2) of the Regulations.

    Background

16. The applicant, Mr Navdeep Singh is an Indian national who was born on 13 November 1994 and is 28 years old. The applicant did not state that he had been in any previous relationships with persons other than the sponsor.

17. The sponsoring partner, Rajwinder Kaur (‘the sponsor’), is an Australian permanent resident who was born on 29 November 1989 and is 33 years old. The sponsor declared one previous relationship which ended in divorce on 10 December 2015.

18. In their application, the applicant and sponsor claim to have met for the first time on 17 February 2017 in Nakodar, India. They committed to a shared life together to the exclusion of all others on 17 February 2017, and were married on 19 February 2017 in Bajwa Kalan, India. They claimed to have lived together for a month directly after the marriage before the sponsor travelled back to Australia. They claimed that the marriage was arranged by their parents who introduced them to each other and then agreed to go ahead with the marriage.

    The Department application

19. The applicant lodged a valid application for a Partner (Provisional) (Class UF) (Subclass 309) visa and a Partner (Migrant) (Class BC) (Subclass 100) visa on 11 April 2017 on the grounds of being in a spousal relationship with an Australian permanent resident, the sponsor, who lodged a sponsorship in support of the application.

20. The applicant provided the following documents in support of their visa applications:

    ·Divorce Order for the sponsor and her ex-husband dated 10 December 2015

    ·Indian Marriage Certificate registered 2 March 2017

    ·Photographs of the marriage ceremony

    ·Wedding Invitation to the couple’s wedding on 17 February 2017

    ·Form 888 statutory declaration by Harjpinder Kaur dated 14 December 2017

    ·Translated Family Certificate Affidavit dated 2 January 2018

21. The applicant was granted the Subclass 309 visa on 8 March 2018.

22. On 1 February 2019, the applicant’s sponsor notified the Department of the cessation of the relationship.

23. On 25 February 2019, the Department wrote to the applicant requesting him to comment on the change in his relationship status, but no response was received. The Department wrote to the applicant again on 14 May 2019 requesting that he comment on the change of his relationship status, but again no response was received.

24. On 6 August 2019, the delegate of the Department made a decision to refuse to grant the applicant the Partner (Migrant) (Class BC) (Subclass 100) visa on the basis that the applicant had not provided evidence that he continued to be the spouse or de facto partner of her Australian citizen, Australian permanent resident, or eligible New Zealand citizen sponsor as defined in regulation 1.15A or 1.09A, and found that he did not satisfy subclause 100.221(2) of the Regulations.

    The Tribunal application

25. As noted earlier in this decision, the applicant first applied for review of the Department’s decision with the Tribunal, differently constituted, on 14 August 2019 (Case Number 1922517). That Tribunal ultimately decided to affirm the decision of the Department on 25 February 2022, and the applicant applied for review of that decision with the Federal Circuit Court on 21 March 2022. The Federal Circuit Court remitted the application by consent back to the Tribunal for fresh consideration and review on 28 September 2022, which is the basis of the current review application (Case Number 2214773).

26. The applicant did not provide a copy of the Department’s decision record notification and notification letter with their review application, and no supporting documents were provided to the Tribunal at the time of application.

27. The applicant appointed a representative to represent him and receive documents on his behalf on 17 October 2022.

    Invitation to comment on or respond to information under s.359A of the Act

28. On 21 April 2023, the Tribunal wrote to the applicant via their representative and invited the applicant to comment on or respond to information under s.359A of the Act. The letter stated that the Tribunal had information before it which it considers would, subject to the applicant’s comments or response, to be the reason or part of the reason for affirming the decision under review. The particulars of the information was that the Department of Home Affairs received a dob-in from a third party which alleged that the applicant’s marriage to their sponsoring partner was contrived for the purpose of being granted an Australian visa.

29. The letter stated that this information was relevant to the review because if the Tribunal was to rely on this information, it may lead to the Tribunal finding that the applicant was not in a genuine and continuing relationship with the sponsor, and that the relationship was contrived for the purpose of being granted an Australian visa. The letter continued that if the Tribunal was to rely on this information in making its decision, the Tribunal may find that the applicant’s relationship with the sponsor was not genuine and continuing, and this would form the reason or part of the reason for affirming the decision under review.

30. The applicant was provided with 14 days to give their comments or response in writing or to request an extension of time to respond. The letter stated that if the Tribunal did not receive the applicant’s comments or response within the period allowed or as extended that the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s views on the information and the applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

31. No response was received.

    Invitation to comment on certificate validity

32. On 21 April 2023, the Tribunal wrote to the applicant via their representative and advised the applicant that there was a non-disclosure certificate issued under s.375A of the Act, seeking to protect the disclosure of certain folios on the Department’s file. The letter advised that the certificate sought to protect disclosure because it would be contrary to the public interest to disclose the folio on the basis that it contains the email details of a source of an allegation. The letter stated that the material sought to be protected by the certificate related to a dob-in made to the Department which alleged that the applicant was in a contrived relationship with his sponsorship partner. The letter stated that, subject to the applicant’s comments, the Tribunal proposed to find that the certificate was valid and inviting the applicant to provide any comments they may wish to make on the validity of the certificate. The letter provided the applicant 14 days to make any response they might wish to make.

33. No response was received.

    Whether the parties are in a spouse or de facto relationship

34. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen.

35. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.

36. ‘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?

37. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and sponsor provided the Department with a copy of their marriage certificate indicating the marriage was solemnized on 19 February 2017. The Tribunal has viewed the certificate and there is nothing to suggest the marriage is not valid. 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). 

    Are the other requirements for a spouse relationship met?

38. The Tribunal has before it the Department’s file relating to the application made by the applicant for a provisional and permanent Partner visas BCC2017/1343978. The applicant did not provide a copy of the delegate’s decision.

39. According to the information provided in the visa application, the applicant was born on 13 November 1994 and is an Indian citizen. He married the sponsor on 17 February 2017. The sponsor is Ms Rajwinder Kaur who is an Australian permanent resident and born on 29 November 1989. According to Departmental correspondence the applicant was granted a Partner (Provisional) (Class UF) Subclass (309) visa on 8 March 2018.

40. The Tribunal has had regard to the material in the Department file as detailed above which includes the Divorce Order for the sponsor and her ex-husband dated 10 December 2015, the Indian Marriage Certificate registered 2 March 2017, photographs of the marriage ceremony, wedding Invitation to the couple’s wedding on 17 February 2017, Form 888 statutory declaration by Harjpinder Kaur dated 14 December 2017, an explanation regarding the development of the relationship indicating the marriage was arranged and statements regarding the relationship explaining that there is not enough financial evidence to provide or details of their household or social aspects as they have not been living together. They stated that they are committed to each other’s better future. Details of witnesses were also included. The applicant and sponsor lived together after the marriage for a month and travelled to Australia. The applicant visited Australia from July 2017 to August 2017. The applicant and sponsor stated that occasional money transfers and gifts were exchanged prior to the initial visa being granted. There was also a translated Family Certificate Affidavit dated 2 January 2018 provided.

41. On 1 February 2019, the applicant’s sponsor notified the Department of the cessation of the relationship. Further, the Department received an allegation that the relationship was contrived.

42. This information was put to the applicant by the Tribunal but no response was received and the applicant did not attend the hearing to provide any further information.

43. On the evidence before it the Tribunal finds that Rajwainder Kaur, who was identified as the sponsoring spouse for the purposes of the present application, is a ‘sponsoring spouse’ as defined in cl.100.111.

44. The marriage certificate submitted with the applicant’s visa application indicates that he and Ms Kaur were validly married on 17 February 2017. The sponsor notified the Department on 1 February 2019 of her withdrawal of the sponsorship. The applicant has provided no response to the adverse information put to him under s359A of the allegation that the relationship was contrived. However, there is no evidence before the Tribunal to indicate that they are no longer married to each other. Thus, the Tribunal finds that at the time of this decision the applicant and the sponsor are married to each other under a marriage that is recognised as valid for the purposes of the Act. They therefore satisfy the requirements of r.1.15(1A)(a) for a married relationship.

45. In forming an opinion whether the applicant and sponsor are in a married relationship including whether they have a mutual commitment to a shared life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together or do not live separately and apart on a permanent basis, the Tribunal has had regard to all of the circumstances of the relationship, including evidence of the financial and social aspects and the nature of the applicant’s and sponsor’s household and their commitment to each other as required by the legislation.

46. There is no evidence before the Tribunal to indicate that the parties continued their relationship after the grant of the subclass 309 visa. Nor is there evidence before the Tribunal regarding the financial or social aspects of the parties’ relationship, the nature of their household or their commitment to each other at the time of decision. Therefore, on the basis of the evidence before it, the Tribunal is not satisfied that at the time of decision the applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others or that the relationship is genuine and continuing. They therefore do not meet the requirements of r.1.15A(1A)(b)(i) and r.1.15A(1A)(b)(ii) for a married relationship. Additionally, the Tribunal is not satisfied that the applicant and sponsor live together or not separately and apart on a permanent basis and, accordingly, they do not meet the requirements of r.1.15A(1A)(b)(iii) for a married relationship.

47. The Tribunal therefore finds that at the time of the decision the applicant is not the spouse, within the meaning of r.1.15A of the Regulations, of the sponsor who is the sponsoring spouse. Therefore, the Tribunal finds that the applicant does not meet cl.100.221(2) or (2A)(b) for the grant of a Subclass 100 visa.

    Consideration of other exceptions to the relationship requirements

48. Furthermore, the applicant has not claimed that the sponsoring partner has died and such the applicant does not meet cl.100.221(3). The applicant has not raised any family violence claims nor is there a child to whom the applicant and sponsor have custody or joint custody of or access to under the Family law Act 1975 and as such the applicant does not meet cl.100.221(4). There is nothing to suggest that the applicant’s subclass 309 visa ceased on notification of a decision to refuse a subclass 100 visa and the applicant does not meet cl. 100.221(4A.  .

49. Therefore, the applicant does not meet the prescribed criterion contained in cl.100.221(1) and cannot be granted a Subclass 100 visa.

    Conclusion

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

    DECISION

51. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

    Rachel Westaway
    Senior Member

    
    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).