Singh (Migration)

[2022] AATA 4638

Singh (Migration) [2022] AATA 4638 (5 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gagan Deep Singh

REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER:  1834448

HOME AFFAIRS REFERENCE(S):          BCC2016/2458964

MEMBER:T. Quinn

DATE OF DECISION:  5 December 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 05 December 2022 at 11:17am

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – genuine and continuing partner relationship – relationship ceased – international family visit – no knowledge of the sponsor’s whereabouts – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65, 338, 347
Migration Regulations 1994, Schedule 2, cls 801.221, 820.211, 820.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5
Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105

statement of decision and reasons

application for review

1. On 25 July 2016, the applicant (‘the applicant’) applied for a Partner visa[1] (‘the visa’) on the basis of his claimed relationship with his sponsor, Ms Amanda Joan Knox (‘the sponsor’).[2]

   [1]           Specifically, a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.

   [2]Pursuant to section 65 of the Migration Act 1958 (‘the Act’). At the time of the applicant’s application, Class BS contained only one subclass: Subclass 801 (Partner) and Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of these visas are set out in Parts 801 and 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.

2. On 6 November 2018, a delegate of the Minister for Home Affairs (‘the delegate’) refused the applicant’s partner visa application, not being satisfied that the applicant and the sponsor (‘the applicants’) were in a spouse relationship as defined by section 5F of the Act (‘the delegate’s decision’).[3]

   [3]         See clauses 801.221 or 820.211 of the Migration Regulations 1994 (‘the Regulations’).

3. On 23 November 2018, the applicant applied for a review of the delegate’s decision with this Tribunal.[4]

   [4] Pursuant to sections 338(2) and 347 of the Act.

4. The applicant was represented in relation to the review.

5. On 5 December 2022, the applicant appeared before the Tribunal to give evidence and present arguments.  His representative did not attend the hearing.  On the morning of hearing, the applicant responded to the hearing invitation which the Tribunal sent on 17 November 2022 requesting a Punjabi interpreter.  The hearing was arranged to be conducted with the assistance of an interpreter in the Punjabi and English languages attending via telephone but upon arrival the applicant indicated he did not require an interpreter and wished to proceed in English.

6. The sponsor did not attend or give evidence at the hearing.

7. It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant(s), in as much detail as necessary to enable the decision maker to properly consider the case that is being put.[5]

   [5]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61.

8. I have proceeded to a decision having regard to all the information before me.  For the following reasons, the decision under review is affirmed.  In reaching its decision, I have regarded:

   a.the oral evidence of the applicant given at the hearing;

   b.all material filed by or on behalf of the applicant (including after hearing); and

   c.other relevant documents on the Tribunal and Department files.

   Not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the reasons set out below. The reasons incorporate reference only to that information found to be fundamental or materially significant to the determination of the issues in the case.

   STATUTORY AND LEGAL FRAMEWORK

9. The issue in this case is whether the applicants are in a spouse relationship as defined by section 5F of the Act.

10. Clauses 801.221(2) and 820.211(2) of the Regulations 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. In the present case the visa applicant claims to be the spouse of the sponsor, Ms Amanda Joan Knox (‘the sponsor’), who is an Australian born Australian citizen. Based on the information before me I am satisfied that the sponsor is an Australian citizen.[6]

    [6]         See Department file.

11. ‘Spouse’ is defined in section 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.[7] 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 visa applicant’s and review applicant’s household and their commitment to each other as set out in 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in clause 1.15A(3) of the Regulations are effectively questions which must be answered.[8] 

    [7] Section 5F(2)(aa)-(d).

    [8]         He v MIBP [2017] FCAFC 206.

12. The matters outlined in clause 1.15A(3) of the Regulations (and any other circumstances of the relationship under clause 1.15A(2)) must be considered and, to the extent relevant, applied to the applicants’ case. Accordingly, I have carefully considered these matters in relation to the material and evidence before me. I recognise, however, that the Tribunal is an independent statutory body. I must therefore reach my own conclusions as to the merits of the applicant’s case, which includes an assessment of how and to what extent each factor of clause 1.15A is relevant and applicable, independently of any conclusions reached by the delegate.

13. Compliance with the prescribed criteria turns on whether or not the criteria have been met and not on the objective existence of that fact.[9]  In determining whether it is so satisfied, decision makers are not required to uncritically accept any or all of the claims made by the applicants and I have not done so.  A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion is not made out.[10]

    [9]         Minister for Immigration and Border Protection v Angkawijaya [2016] FCAFC 5 at 15.

    [10]Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 1105 at [7].

14. If a decision maker does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed.  The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepts or rejects individual pieces of evidence.[11]

    [11]Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham [2000] 168 ALR 407 at [67].

15. It is for the applicant, in this inquisitorial process, to put whatever evidence or argument they wish to a decision maker in order to enable that decision maker to reach the requisite state of satisfaction.[12]

    CONSIDERATION OF CLAIMS AND EVIDENCE

    [12]Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76].

    Valid marriage

16. If the sponsor and the applicant are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  A copy of their Marriage Certificate has been filed with the Department which indicates they were married on 11 March 2015.[13] On the evidence, the applicants were married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a). I note the delegate’s decision refers to the year ‘2016’ instead of ‘2015’ throughout in relation to the date of marriage. The applicant was very upset by this and considered it meant that the delegate’s decision was fundamentally flawed, based on the wrong date and that everything flowing from that error was therefore infected. I empathise with the applicant in this regard.

    [13]        See the Department file.

    Evidence Generally

17. The sponsor did not attend the hearing.

18. The applicant gave evidence that although he and the sponsor are still legally married, they are separated.  He was unable to answer questions about where she was living and when asked when he last saw her, gave evidence that he was not sure when the last time he had seen her was and it had been ‘a while’.  When asked if he had spoken to her on the phone, he said ‘I don’t talk to her on the phone for a while now’.

19. The applicant’s evidence is that he has not communicated with the sponsor for some time, they are not living together, they are separated, and he does not know where she is living and has not spoken to her for some time.

20. The applicant’s migration agent has also filed an email dated 7 November 2022 saying that

    I would like to inform you that my client informed me that he is no longer in a relationship with his partner.

    DE FACTO RELATIONSHIP?

21. Financial aspects of the relationship including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses must be considered when assessing the financial aspects of the relationship.

22. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are matters to be considered when assessing the nature of the household.

23. Whether the applicants represent themselves to other people as being married to each other, the opinion of the applicants’ friends and acquaintances about the nature of the relationship and any basis on which the applicants plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

24. The duration of the relationship, the length of time during which the parties have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the parties see the relationship as a long term one are all aspects to be considered in determining the nature of the parties’ commitment to each other.

25. The applicant made submissions at hearing that the delegate’s decision had many facts wrong about his case, including the year of married.  He claimed that his family had come to visit them in 2018 and lived with him and the sponsor for three months and said the delegate had ruined his family’s life.  He claimed that at the time of his application and the delegate’s decision his relationship was genuine and that if it had not been for the delegate’s unfair refusal, maybe he and the sponsor would still be together.  He gave evidence that they did not look at his file and ‘refused me just because I am Indian’.  He wished to be heard, said that he wanted justice and the case officer had made a big mistake which infected the entire decision, most particularly that he married in 2016 rather than 2015 as is reflected in the marriage certificate filed with the Department.  He gave evidence that he and the sponsor had considered moving to India but after lodging the application which is the subject of this review decided to stay.

26. I empathise with the applicant and acknowledge that the year of marriage in the delegate’s decision is incorrect although I do not accept the submission that this infected the entire decisions such that all the findings are incorrect.  I also acknowledge the unfortunate situation that there are often very, very lengthy delays in the partner visa cases and that this is likely to place unwanted pressure on a relationship. 

27. I explained to the applicant that even if I accepted his submissions and the delegate’s decision is entirely flawed and I found that he was in fact in a genuine relationship with his sponsor at the time of application, the Act requires that he continue to be a in a genuine relationship at the time of decision.[14]  In this regard, I noted that the sponsor was not at the hearing to give evidence in support of their previous relationship.

    [14] See clause 820.211(1)(a) of the Regulations.

    Conclusions on claimed de facto relationship

28. I have carefully considered all of the evidence before me.  I do not consider the evidence supports a finding that the applicant and the sponsor are in any sort of relationship, spousal or otherwise.  The applicant was unable to articulate when he had last spoken to or lived with the sponsor and did not know where she is living.  In those circumstances, I am not satisfied the applicant and sponsor have a mutual commitment to a shared life to the exclusion of others or that their relationship is genuine and continuing.  Based on the evidence before me, the applicant and sponsor do not live together, or not separately and apart, on a permanent basis.  I am not satisfied that the applicant is in a spousal relationship with the sponsor.  Clauses 801.221 and 820.221 require that the applicant is the spouse or de facto partner of the sponsor at the time of the decision.  The applicant himself has conceded in writing and orally at hearing that he does not satisfy these criteria.

    Other matters

29. I note the applicant’s fervent disappointment and sense of injustice about the way in which his case has been handled by the Department and empathise with how challenging this experience has been for him.

    decision

30. The applicant does not meet clause 801.221 or clause 820.211 of the Regulations.

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

    T. Quinn
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).