Singh (Migration)

[2018] AATA 2737

Singh (Migration) [2018] AATA 2737 (29 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Paramvir Singh

CASE NUMBER:  1717221

DIBP REFERENCE(S):  BCC2014/1942948

MEMBER:Justin Owen

DATE:29 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2018 at 9:35am

CATCHWORDS
Migration – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Spouse or de facto partner – Relationship ceased – Not living together – Divorce papers filed – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5 F, 65, 359, 359A, 376
Migration Regulations 1994 (Cth), Schedule 2 cls 100.211, 100.221

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 26 July 2017 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 8 August 2014 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 (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. Relevantly to this matter, the primary criteria include cl.100.221 of Schedule 2 to the Regulations.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221 because the applicant was not, at the time of decision, the spouse (as defined under section 5F of the Act) or the de facto partner (as defined under section 5CB of the Act) of the sponsoring partner.

5. The Tribunal received from the applicant a valid application for review on 7 August 2017. 

6. The applicant was represented in relation to the review by his registered migration agent.

7. The Tribunal has before it the Department’s file relating to the applicant; its own file; and a copy of the Departmental decision record provided by the applicant to the Tribunal. 

8. On 20 April 2018 the Tribunal wrote to the applicant pursuant to sections 359A and 359(2) of the Act inviting him to comment on or respond to information by 4 May 2018. 

9. The particulars of the information were that the applicant had made an application for a Partner visa. It was pointed out that it is a requirement for the grant of that visa that at the time when the application is made, and at the time of the decision, the applicant was the spouse or de facto partner of the sponsoring partner, unless one of the exceptions applies.   The Tribunal pointed out that information on the Department’s file indicated that his relationship with the sponsoring partner has ended.

10. The Tribunal pointed out that the information was relevant as the Tribunal may conclude that at the time of this decision, the applicant was no longer the spouse or de facto partner of the sponsor. The Tribunal stated that if it was not satisfied that the applicant was the spouse or de facto partner of the sponsor, and if he did not meet any of the alternative criteria for the grant of the visa, the Tribunal may conclude that he did not meet the requirements for the grant of the visa for which he had applied.

11. The applicant was invited to give comments on or respond to the above information in writing.  He was also invited to provide in writing any claims he wished to make as to the exceptions under which he could be granted the Partner visa. These included the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children.  The Tribunal invited the applicant to provide information that he believed may be relevant to these exceptions.

12. The applicant responded on 4 May 2018 providing a submission to the Tribunal.

13. On 6 June 2018 the applicant was invited by the Tribunal to a hearing to appear before it to give evidence and present arguments.

14. On 13 June 2018 the applicant through his representative formally declined the invitation to attend the hearing. (T1, Folio 33).  The applicant’s representative stated that the applicant had decided not to attend the hearing and the Tribunal can proceed with a decision. 

15. A certificate was issued by the Delegate under s.376 of the Migration Act 1958 restricting the Tribunal from disclosing certain information in the Departmental file BCC2014/1942948 on the purported basis that disclosure of such information would be contrary to the public interest because those pages were obtained from a source who advised they would fear for their safety if their identity and location was disclosed. The Delegate also certified that the information had been given to the Minister, or an officer of the Department in confidence, and s.375A did not apply. The Tribunal has discretion under s376 to disclose the information on the file to the applicant. The Tribunal considered that the certificate contained a valid ground of public interest immunity not to disclose the information. The Tribunal did not consider the information covered by the certificate to be relevant to the review. The Tribunal wrote to the applicant on 20 June 2018 and informed him of the gist of the information that is subject to the s376 certificate (T1, Folio. 52). A copy of the s376 certificate was provided to the applicant.

16. The Tribunal informed the applicant that it did not consider the information covered by the certificate is relevant to this review. The issue rather before the Tribunal is whether the applicant continues to be in a spousal or de facto relationship with the sponsoring partner at the time of decision and, if not, whether they meet any of the exceptions available under the Act and the Regulations.

17. The Tribunal invited the applicant to comment on or make submissions on the validity of the certificate and also to seek a favourable exercise of the Tribunal’s discretion to disclose the material. The applicant responded on 27 June 2018.  The applicant denied his relationship with the sponsor had been contrived and stated it had been genuine. The applicant requested that the Tribunal disclose the material.  The Tribunal declined to do so given it had already disclosed the material particulars to the applicant and considered it was not in the public interest to disclose the material in its entirety. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The Tribunal has reviewed the materials the applicant has submitted to the Tribunal and previously to the delegate. 

20. The applicant’s representative Mr Navneet Singh provided a submission on behalf of the applicant that provided a timeline of the applicant’s migration history in Australia from the time of his arrival in 2008 up until his application for review of the delegate’s decision to refuse his application for a 100 Partner visa on 7 August 2017.

21. The submission comments on the applicant and sponsor’s residence in 2015 after the applicant was granted his subclass 309 Partner visa on 9 September 2015. 

22. The submission notes that the applicant went to India in August 2014 and took over a year to have the subclass 309 Partner visa granted.  The submission claims ‘It is a common saying that only very few relationship sustain long distance’ and ‘Long distance relation took its toll’ and notes that on 21 December 2015 the sponsor notified the Department that the relationship with the applicant had ceased and divorce papers had been officially lodged.   

23. The submission states that the applicant married the sponsor on 26 June 2011 and the applicant could have lodged an onshore Partner visa application based on the then married relationship at any time after the marriage.  The applicant claims he is the victim of wrong advice from a migration agent.  The submission states that the applicant’s migration agent applied for a partner visa on the basis of the applicant’s de facto relationship.  The submission states that based on the evidence of relationship ‘the migration agent could not establish that they had a mutual commitment to a shared life.’  A copy of the Tribunal’s decision affirming the Department’s refusal of the applicant’s application of 30 May 2011 for a Partner visa based on his claimed de facto relationship with the sponsor was submitted in support of this claim. (T1, Folio36-45).

24. The applicant claims that based on the married relationship with the sponsor he was granted a subclass 309 Partner visa.  He claims that from the lodgement of the onshore Partner visa application of 30 May 2011 until the notification of the end of the relationship with the sponsor on 21 September 2015; this was a period of four years and four months.  It is asserted that the applicant could ‘easily’ have been granted a Partner visa, had the process been carried out correctly in 2011.

25. The Tribunal notes the claims the applicant has made concerning his Partner visa.  The issue in the present case however is whether the applicant and her sponsor are currently in a spousal relationship; and if not whether the applicant satisfies the alternate criteria (child of the relationship; death of sponsor or victim of family violence) to be granted a visa (cl.100.221).

26. Clause 100.221 subclause (1) of the Regulations requires that the applicant must, at the time of decision, satisfy subclause (2), (2A), (3), (4) or (4A) of clause 100.221. Relevantly in this case, 100.221 subclause (2) requires that the applicant remains the spouse (as defined under section 5F of the Act), or de facto partner (as defined by section 5CB of the Act) of their sponsoring partner at that time. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that on 21 December 2015 the Department was notified that the applicant’s relationship with the sponsor had ceased, that the applicant and sponsor were no longer living together and divorce papers had been officially lodged. The applicant’s submission to the Tribunal reflects this date and this status of the relationship. As the relationship with the sponsor has ended and the applicant no longer continues to be sponsored for the grant of the visa by his sponsoring partner, the applicant does not satisfy cl.100.221(2)

27. The applicant may satisfy clause 100.221 by meeting the requirements of at least one of the subclauses (3) and (4).  These prescribe certain circumstances in which an applicant may continue to be considered for the grant of permanent residence where the relationship with the sponsor has ceased.  These include the death of the sponsoring partner; family violence; and certain court orders or responsibilities in relation to children.  The applicant has not claimed any of the exceptions.  There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria in cl.100.211 (3)-(4). 

28. There is no evidence or suggestion before the Tribunal that the applicant meets the alternative criteria cl.100.211 (2A) and (4A) which relies on specific procedural scenarios that do not apply in this case.  

    FINDINGS

29. On the basis of the applicant’s own evidence, and the evidence on the decision record provided by the applicant, the Tribunal is not satisfied that at the time of this decision, the applicant is the spouse (as defined under section 5F of the Act) or the de facto partner (as defined under section 5CB of the Act) of the sponsoring partner. There is no claim made and no evidence before the Tribunal that the sponsoring partner has died. There is no claim made or evidence before the Tribunal of any children or responsibilities towards any children. The applicant has not made a claim of family violence. The Tribunal is not satisfied the applicant meets cl.100.221.

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

    DECISION

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

    Justin Owen
    Senior Member