THAKUR (Migration)

[2019] AATA 2178

THAKUR (Migration) [2019] AATA 2178 (15 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parul THAKUR

CASE NUMBER:  1817611

DIBP REFERENCES:  BCC2016/2084991; OSF2016/050632

MEMBER:Rosa Gagliardi

DATE:15 March 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant)(Class BC) subclass 100 visa. 

Statement made on 15 March 2019 at 3:47pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – relationship ceased – withdrawal of sponsorship – no evidence of genuine and continuing spousal relationship – no exceptions claimed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 29 May 2018 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) Subclass 100 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 15 June 2016. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.100.221 because the applicant’s relationship with the sponsor ended and the delegate was not satisfied the applicant met any of the alternative criteria for the grant of the visa.

3. On 5 December 2018 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing.  The information related to the withdrawal of sponsorship by the sponsoring partner.  The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 19 December 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

4. On 18 December 2018 the applicant wrote to the Tribunal a lengthy response explaining he had married his spouse in good faith and how the relationship had been widely recognised by their respective families and communities.  He stated that he did not understand what happened after his arrival to Australia in December 2017, that led to his spouse filing a sponsorship withdrawal.  He contends that had there been such an intention on her part she could have informed the Department well before the grant of the visa and he would not have moved from India to Australia and the mental/physical/financial stress borne by him and his family could have been avoided.  He stated that given the situation and the lack of communication between him and the sponsor he intended to break up with his spouse legally.  He asked that the Tribunal “terminate/cancel” his joint application for a Spouse visa. 

5. The applicant also wrote, “However you are requested please to act in the matter sympathetically and if possible allow me to convert my earlier application for Spouse visa to any other Visa application (as may be permitted under the law of the country)”, as he had not brought about the situation in which he found himself and he wanted to get some financial, mental and moral relief.

6. Communication by the Tribunal dated 20 December 2018 indicates that the applicant advised that he was planning to move bank to India permanently and would be leaving within the week and that he did not want to continue with the case.  The process of withdrawing his application was explained to him and the applicant advised he might be able to withdraw depending on his personal matters.

7. At the time of writing this decision the applicant has not withdrawn or communicated with the Tribunal further, and in the circumstances the Tribunal has decided to proceed to decision.

   FINDINGS

8. The issue before the Tribunal is whether the applicant is a spouse, or de facto partner, of the sponsor.  For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

9. The applicant provided to the Tribunal a copy of the primary decision record.  It indicates the applicant sought the visa on the basis of her relationship with the sponsor but in January 2018, the sponsor advised the Department that the relationship ended.

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.  Further, 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.  Indeed, the applicant has written to state he also does not wish to continue with the relationship.

11. The Tribunal is therefore not satisfied on the evidence 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 that 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. In terms of the exceptions, there is no evidence before the Tribunal that the sponsor has died.  There is no evidence in relation to any family violence and 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 any of the requirements in cl.100.221.

13. The Tribunal understands that the applicant is aggrieved by his former spouse’s conduct and the upheaval it has caused him.  The Tribunal has taken into account he would like the Tribunal to assist him convert his Spouse visa application to another visa class.  While the Tribunal is sympathetic to the applicant’s circumstances, it does not have the power to grant him another visa.  Only the Minister, if the applicant can make out that his case meets the relevant guidelines, can intervene.

14. In terms of the applicant’s request that the Tribunal compel his former spouse to undertake the relevant paperwork for a divorce, the Tribunal is also not empowered to undertake such action and the applicant may wish to seek legal advice to assist him proceed through to divorce.

    Conclusion

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

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) Subclass 100 visa.

    Rosa Gagliardi
    Member