Singh (Migration) - [2017] AATA 3116

Singh (Migration) [2017] AATA 3116 (20 June 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sanjay Singh
CASE NUMBER:  1601392
DIBP REFERENCE(S):  CLF2012/9452 OSF2008/006462
MEMBER:Chantal Bostock
DATE:20 June 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.
Statement made on 20 June 2017 at 10:25am

CATCHWORDS
Migration – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) - Federal Magistrates’ Court remittal – Whether a genuine spousal relationship exists – Applicant did not attend hearing – Lack of evidence of genuine spousal relationship – Adverse allegations against the applicant – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 375A
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cl 100.221(2)(b)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 January 2012 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 4 August 2008 on the basis of his relationship with his sponsor. At that time, Class BC contained two subclasses: Subclass 100 (Spouse) and 110 (Interdependency). The applicant has made claims only for the Subclass 100 visa and does not claim to be in an interdependent relationship as required by Subclass 110.
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. Relevantly to this matter, the primary criteria include cl.100.221(2)(b).
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant, a citizen of Fiji, married the sponsor, an Australian citizen, on 4 October 2003. On the basis of their relationship, the applicant was granted a subclass 309 visa in 2009 and he travelled to Australia in 2009. The Department began to process the second stage of the applicant’s visa application. In 2011, the Department conducted a home visit at the parties’ address during which the sponsor’s daughter denied any knowledge of the applicant and stated that her mother was single. The Department subsequently held an interview with the parties, following which the delegate found that there were many inconsistencies in the parties’ responses. On 20 January 2012, the Departmental delegate found that the relationship between the parties was not genuine and refused the subclass 100 visa application on the grounds that the applicant did not meet cl. 100.221. The Departmental delegate found that overall, the parties had provided little convincing evidence that their relationship was genuine and continuing.
The applicant lodged a review application with the Migration Review Tribunal (MRT). The applicant lodged material in support of his application including the following: a one-page joint CBA bank statement covering the period of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 3116
Decision Date: 20 June 2017

CaseChat Overview and Summary

This matter concerned an application for a Partner (Migrant) (Class BC) visa, subclass 100, by a citizen of Fiji sponsored by an Australian citizen. The applicant had previously been granted a subclass 309 visa and travelled to Australia. The Departmental delegate refused the subclass 100 visa application, finding the relationship between the parties was not genuine and continuing, a decision affirmed by the Migration Review Tribunal (MRT). The Federal Magistrates’ Court subsequently remitted the matter to the MRT due to a breach of procedural fairness concerning the applicant's access to documents. The present decision was made by the MRT following this remittal.

The Migration Review Tribunal was required to determine whether the applicant met the criteria for the grant of the Partner (Migrant) visa, specifically whether the spousal relationship between the applicant and the sponsor was genuine and continuing. This involved considering all the circumstances of the relationship, including financial, household, social aspects, and the nature of the commitment to each other, as outlined in the Migration Regulations 1994. The Tribunal also had to consider the evidence presented by the applicant and the adverse information that had been raised during the Departmental processing and previous Tribunal review.

The Tribunal affirmed the decision not to grant the visa. It noted that the applicant had been invited to a hearing but, in correspondence, stated he and his partner were not happy to attend another hearing and requested the application be considered based on previous evidence. While the hearing was cancelled, the applicant was later provided with access to the relevant documents. The Tribunal found that, despite the remittal and the provision of documents, the applicant had not provided sufficient convincing evidence to satisfy the criteria for a genuine and continuing spousal relationship. The Tribunal considered the lack of attendance at the hearing, the previous adverse findings by the Department, and the limited evidence provided by the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The applicant, a citizen of Fiji, married the sponsor, an Australian citizen, on 4 October 2003. On the basis of their relationship, the applicant was granted a subclass 309 visa in 2009 and he travelled to Australia in 2009. The Department began to process the second stage of the applicant’s visa application. In 2011, the Department conducted a home visit at the parties’ address during which the sponsor’s daughter denied any knowledge of the applicant and stated that her mother was single. The Department subsequently held an interview with the parties, following which the delegate found that there were many inconsistencies in the parties’ responses. On 20 January 2012, the Departmental delegate found that the relationship between the parties was not genuine and refused the subclass 100 visa application on the grounds that the applicant did not meet cl. 100.221. The Departmental delegate found that overall, the parties had provided little convincing evidence that their relationship was genuine and continuing. The applicant lodged a review application with the Migration Review Tribunal (MRT). The applicant lodged material in support of his application including the following: a one-page joint CBA bank statement covering the period of August 2011 until November 2011; correspondence addressed to the parties and photographs of the parties together. Following the hearing, the previous Tribunal wrote to the applicant under s 359A of the Migration Act, putting to him the information provided by the sponsor’s daughter at the home visit and the inconsistencies in the parties’ responses at the Departmental interview and during the hearing. The applicant responded to the s 359A letter and requested copies of all his documents. In due course, the previous Tribunal did not accept that the parties were in “a genuine and continuing relationship” and affirmed the decision. The applicant appealed. On 18 March 2015, the Federal Magistrates’ Court ordered that the matter be reconsidered on the basis that the applicant’s request for access to documents was not met, thereby constituting a breach of the Tribunal’s procedural fairness obligations: Singh v Minister for immigration & Anor [2015] FCCA 533. The applicant’s review application was reconstituted to the present Tribunal. On 8 August 2016, the applicant was invited to attend a hearing on 9 November 2016. On 3 November 2016, the applicant wrote to the Tribunal stating, amongst other things: I have been hurt from the last hearing as well as my partner, Ms Henry. We were both very happy that the Federal Court made a decision in our favour. My partner and I are not happy to attend another hearing and for that reason we ask that that the Tribunal consider the application based on the previous evidence and evidence on file. The hearing was cancelled on 7 November 2016, given the applicant’s abovementioned correspondence and that the applicant had not received access to written documents. On 17 November 2016, the applicant was provided with access to the written material on the Department’s and Tribunal’s files.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.Chantal BostockMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse…(3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:(ad)a Partner (Migrant) (Class BC) visa; or(ae)a Partner (Provisional) (Class UF) visa; or(af)a Partner (Residence) (Class BS) visa; or(ag)a Partner (Temporary) (Class UK) visa;the Minister must have regard to all of the circumstances of the relationship, including, in particular:(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 party to the relationship owes any legal obligation in respect of the other; and(v) the basis of any sharing of day‑to‑day household expenses;(b)the nature of the household, including:(i) any joint responsibility for care and support of children, if any; and(ii) the parties’ living arrangements; and(iii) any sharing of responsibility for housework;(c)the social aspects of the relationship, including:(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;(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;(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)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).(5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.

Ratio Decidendi

Legal Principle Established

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