Singh (Migration)

[2018] AATA 3397

Singh (Migration) [2018] AATA 3397 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Harjinder Singh

CASE NUMBER:  1702277

DIBP REFERENCE(S):  BCC2016/2835514

MEMBER:Carmel Morfuni

DATE:28 August 2018

PLACE OF DECISION:  Melbourne

DECISION:

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

Statement made on 29 August 2018 at 10:03am.

CATCHWORDS
Migration – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – Sponsorship withdrawal – Exceptional circumstances – No child of the relationship – No exceptional circumstances – Lodged partner visa application out of time – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 801.211, Schedule 3 Criterion 3001, 3002

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 20 January 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The Administrative Appeals Tribunal  (AAT) President’s direction 8.2 states:

   “As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters”

3. The applicant appeared at the hearing and provided oral evidence

   The Issues

4. The primary requirement in the present case for the granting of the Visa is that at the date of decision the applicant is the spouse or de facto partner of the sponsor.

5. In this case, since the delegate’s decision refusing the applicant the visas, the sponsor has withdrawn her sponsorship therefore at the date of decision there is no longer a current sponsor.

6. Where a relationship has broken down, the exceptions to not granting the Visas are the death of the sponsor, a biological child of the parties' relationship in or whether or not there has been family violence perpetrated on the applicant or a child of the relationship.by the applicant’s former spouse during the course of the relationship. In the present case, the applicant indicated in oral evidence that he was not making a claim in relation to any of the exceptions (see paragraph 19 below).

7. The parties met on 8 October 2015 and married 29 June 2016.The applicant applied for the current visa on 26 August 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). 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.

8. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and that there were no compelling reasons for waiver of the Schedule 3 criteria. Further the delegate found, that as the applicant was not the holder of a subclass 820 Visa that he did not meet the requirements of cl 801.22.

9. On 21 August 2018, the Tribunal was advised in writing by the applicant’s representative that the sponsor wished to withdraw her sponsorship.

10. The applicant appeared before the Tribunal on 28 August 2018 to give evidence and present arguments.

11. The applicant’s representative did not appear at the hearing and there were no additional witnesses.

12. The Tribunal hearing was conducted with the assistance of an interpreter fluent in the Punjabi and English languages.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The applicant submitted numerous photographs taken during the parties’ relationship in support of that relationship which have been considered by the Tribunal. He stated that the parties were in a genuine and committed relationship prior to the sponsor’s withdrawal of her sponsorship.

15. The applicant also stated that his relationship with the sponsor was very happy until her father interfered in their relationship. The applicant stated that in his view, the reason for this was that the sponsor’s parents were living with her and her young child (from a previous relationship) in Queensland. At the time, she was obtaining Centrelink benefits, an arrangement which in the applicant’s view also benefited and suited her parents. He stated that after the parties moved to Melbourne in March 2016, the parents no longer benefited from those living arrangements and moved to New South Wales, the sponsor’s father applying pressure and manipulating the sponsor into leaving the applicant ultimately putting an ultimatum to her to choose between the applicant and her parents. It was his contention, that due to her mental condition and vulnerability, the sponsor withdrew her sponsorship. At the hearing, he read aloud a message from the sponsor written to him on 20 May 2018 which stated that her child, then aged four, misses him. The applicant also stated that he was the only father whom the child had ever known and the family had never told the child about her biological father.

16. The applicant conceded in oral evidence that he was unlawfully in Australia between 13 October 2010 and 25 August 2016 and that he lodged an application for his current visas on 26 August 2016 being more than 28 days after the expiration of his last substantive visa on 13 October 2010 (the relevant date).

17. The applicant further conceded that the relationship with the sponsor ceased a week or so prior to her withdrawal of her sponsorship, that his sponsor has withdrawn her sponsorship and that he did not wish to raise any further issues relating to compelling reasons.

18. The applicant did not request the Tribunal to make a recommendation to the Minister nor did he indicate that he intended to approach the Minister direct.

19. Where a genuine relationship has ceased, the circumstances/exceptions in which a Visa may be granted at the date of decision are:

    ·the death of the sponsor

    oin the present case, the sponsor is alive and has chosen to withdraw her sponsorship

    ·a biological child of the sponsor or the applicant

    “ in respect of whom the applicant has custody, access, or a residence or contact order made under the Family Law Act 1975.”

    oThe applicant confirmed that that there is no biological child of the sponsor and himself.

    The sponsor must also have the Family Law Act 1975 rights, or a child maintenance obligation.

    oIn the present case there was no evidence of any orders made under the Family Law Act 1975 / or that the sponsor also has such rights or that he has a child maintenance obligation.

    ·where family violence has taken place

    othe applicant stated in oral evidence that there had been no family violence between the parties during their relationship.

20. The Department issued a nondisclosure certificate pursuant to section 376 (3) of the act in relation to information received by the Department by mail on 5 October 201.7 A copy of the certificate was forwarded to the applicant and the representative on 22 June 2018 ) inviting them to make a submission and response by 9 July 2018 including the consent of the sponsor to release of certain information and indicating that the Tribunal has a discretion in relation to some of the information.

21. There was no submission received which contained any further information.

22. On 20 June 2018 the Tribunal received a request for access to written material. By letter dated 19 July 2018 from the Tribunal to the applicant, access to documents were provided with the exception of certain documents containing personal information and documents which were not within the discretion of the Tribunal to release.

23. In relation to documents within the Tribunal’s discretion to release, the Tribunal exercises its discretion not to disclose information in those documents as they contain information which would identify people who provided that information and the Tribunal has concluded in its discretion, that it would not be in the public interest for that identification to take place. The Tribunal did not place weight or reliance on the contents of those documents in coming to its decision.

    DECISION

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

    Carmel Morfuni
    Member