Singh (Migration)

[2018] AATA 555

Singh (Migration) [2018] AATA 555 (13 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satnam Singh

CASE NUMBER:  1620337

DIBP REFERENCE(S):  BCC2015/1655857

MEMBER:Kira Raif

DATE:13 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 February 2018 at 11:15am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Partner of an Australian citizen – Relationship ceased – Sponsorship withdrawn – No mutual commitment to a shared life

LEGISLATION

Migration Act 1958, ss 5F, 65, 362B, 379A

Migration Regulations 1994, Schedule 2 cl.820.211, 820.221, r 1.15

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 17 November 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of India born in September 1988. The applicant applied for the visa on 10 June 2015 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and cl 820.221 because the applicant’s relationship with the sponsor ended and the delegate was not satisfied the applicant met any of the alternative criteria for visa grant.

3. On 9 January 2018 the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 13 February 2018. The applicant confirmed in writing on 7 February 2018 his intention to attend the hearing. However, the applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), the invitation has not been returned to sender. The applicant was aware of the hearing and confirmed his intention to appear prior to the hearing. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   Relevant law

4. At the time the application was made, 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).

   Whether the parties are in a spouse or de facto relationship

5. 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.

6. ‘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 r.1.15A(3).

   Are the other requirements for a spousal relationship met?

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates the applicant sought the visa on the basis of his relationship with an Australian citizen however in September 2016 the sponsor informed the Department that the relationship had ceased and that she wished to withdraw the sponsorship. The applicant was given an opportunity to comment on this information but did not respond.

8. The applicant wrote to the Tribunal in response to the Tribunal’s s. 359A letter on 27 December 2017 confirming that relationship broke down due to a ‘misunderstanding’. The applicant outlined the circumstances of his relationship breakdown and stated that they still contact each other and try to maintain the marriage because the marriage breakdown can harm his life. In his submission to the Tribunal of 7 February 2018 the applicant also states that he and the sponsor still contact each other and the applicant presented a number of social photographs. 

9. The Tribunal is mindful that despite the applicant’s assertions, there is no evidence that the sponsor continues to be committed to this relationship. A spousal relationship requires a mutual commitment by both parties and there is no evidence that the sponsor has any commitment to the relationship, even if the applicant is hopeful of a reconciliation. It is insufficient to state that the applicant wants the relationship to resume in the absence of any evidence that the sponsor has any desire to maintain the relationship. It is also insufficient to state that there is a possibility of a future reconciliation, even if that was accepted. There is no evidence of a genuine and mutually committed relationship at the time of this decision.

10. There is no evidence that at present, the applicant and the sponsor continue to live together or not apart on a permanent basis or that they maintain a joint household or share housework. There is no evidence that they share their finances, have joint liabilities or jointly contribute to expenses. There is no evidence that the applicant and the sponsor continue to represent themselves to others as being in a relationship or that they socialise together. There is no evidence that there continues to be a mutual commitment to the relationship or that the parties draw companionship and support from each other.

11. The Tribunal is not satisfied on the limited evidence before it that at the time of this decision, the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied that at the time of this decision, the applicant is the spouse or the de facto partner of the sponsor.

12. There is no evidence before the Tribunal that the sponsor has died. There is no evidence in relation to any family violence and that there are no children and no relevant court orders or responsibilities in relation to children. On the evidence before it, the Tribunal is not satisfied that the applicant meets the requirements in cl. 820.221.

    Conclusion

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

    DECISION

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

    Kira Raif
    Senior Member