Sukhvinder Singh (migration) - [2025] ARTA 446

Sukhvinder Singh (migration) [2025] ARTA 446 (18 March 2025)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sukhvinder Singh
REPRESENTATIVE:  Mr Nigel James Dobbie
CASE NUMBER:  2320347
HOME AFFAIRS REFERENCE(S):          BCC20142255721
MEMBER:Linda Holub
DATE:18 March 2025
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 18 March 2025 at 3:01pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – relationship has ended – financial aspect of the parties’ relationship – not satisfied the evidence provided supports a claim that a genuine and continuing relationship existed between the applicant and his former sponsor – not satisfied that the applicant and the sponsor were ever in a genuine relationship – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 65, 359, 376
Migration Regulations 1994, Schedule 2, cl 801.221

CASES
He v MIBP [2017] FCAFC 206

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 and Multicultural Affairs on 13 November 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for a Combined Partner (UK-820/801) visa on 9 September 2014 on the basis of his relationship with his then sponsor an Australian citizen, Chantelle Galloway. The applicant was granted a Partner (Temporary) (Class UK) (Subclass 820) on 28 October 2015.

3. At the time of application, the Class BS contained Subclass 801. The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 801.221 which requires the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased, and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl 801.221(6)(b), (c)(i). The applicant claims this occurred in this case.

5. The applicant was refused a (Partner (Residence) (Class BS) (Subclass 801) visa on 13 November 2019 on the basis he did not meet cl 801.221 because the delegate found that the applicant was not in a genuine and continuing relationship with his sponsor as is required under sections 5F(2)(c) and 5CB(2)(b) of the Act. Accordingly, the delegate was not satisfied that the applicant is the spouse or de facto partner (as defined) of his sponsor and was therefore not satisfied that he meets subclause 801.221(2) of the Regulations. As a result, the delegate concluded the applicant does not meet the legislative requirements for the grant of a subclass…

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

AGLC: Sukhvinder Singh (migration) [2025] ARTA 446
Case: [2025] ARTA 446
Decision Date: 18 March 2025

CaseChat Overview and Summary

The matter before the court involved Sukhvinder Singh, who sought to challenge a decision regarding his visa application. The dispute centred on whether Singh could continue to reside in Australia under a Partner (Residence) (Class BS) visa, specifically a Subclass 801 (Spouse) visa. The relationship between Singh and his former sponsor had ended, and the primary issue was whether the evidence presented supported the claim that a genuine and continuing relationship existed between them. The case was heard in the Administrative Appeals Tribunal, which affirmed the decision to review the visa status.

The court was tasked with determining whether the evidence provided by Singh was sufficient to prove that a genuine and enduring relationship existed between him and his former sponsor. This involved an assessment of the financial aspects of their relationship and other factors that would support such a claim. Additionally, the court needed to decide whether the relationship was genuine and ongoing, as this was a critical element in the visa application process.

The tribunal found that the evidence did not support the claim of a genuine and continuing relationship between Singh and his former sponsor. The court concluded that the relationship had not been proven to be genuine, and therefore, the decision to review Singh's visa status was affirmed. The tribunal held that the financial evidence and other factors presented did not substantiate the existence of a genuine relationship between the parties. Consequently, the court maintained the decision to deny Singh's visa application.

The tribunal upheld the decision to review the visa status of Sukhvinder Singh, affirming that the evidence did not support a genuine and continuing relationship with his former sponsor. The court's decision was based on the lack of sufficient evidence to substantiate the claims made by Singh regarding the nature of their relationship. The tribunal's ruling remained in place, and Singh's visa application was denied.

Orders