1409565 (Migration)

[2015] AATA 3219

1409565 (Migration) [2015] AATA 3219 (29 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rajdeep Kaur

CASE NUMBER:  1409565

DIBP REFERENCE(S):  CLF2014/31231

MEMBER:Alan Duri

DATE:29 July 2015

PLACE OF DECISION:  Sydney

DECISION:The tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.211(2) of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations.

Statement made on 29 July 2015 at 10:33am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Ms Kaur was born in India in 1987.  She arrived in Australia on 28 August 2009 on a Subclass 572 student visa.  She was previously married to Mr Malkeet Singh Dhaliwal from 10 May 2009 until their divorce on 5 October 2013.

2. On 10 January 2014 Ms Kaur married Mr Jagdeep Singh.

3. Mr Singh was born in 1982 in India.  He arrived in Australia on 20 January 2009 on a Subclass 572 student visa.  He was granted a Subclass 119 skilled visa on 10 December 2012 and he is now an Australian citizen. 

4. On 28 February 2014 Ms Kaur applied for a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 on the basis of her marriage to Mr Singh.

5. On 15 May 2014 the delegate refused to grant the visa on the basis that Ms Kaur did not satisfy cl.820.211 and cl.820.221.  The delegate found there was insufficient evidence and was not satisfied that Ms Kaur and Mr Singh were in a genuine relationship.

   Hearing

6. Ms Kaur appeared by videoconference from Townsville before the tribunal on 24 July 2015 to give evidence and present arguments. The tribunal also received oral evidence from Mr Singh.

7. Before and immediately after the hearing the tribunal received a large amount of material, that where relevant will be referred to below.

   Ms Kaur’s evidence

8. Ms Kaur told the tribunal that her first marriage was on 13 May 2009.  She claimed that it was an arranged marriage and that she was genuinely in relationship with her first husband.  Ms Kaur indicated that she arrived in Australia and studied a cookery course in Brisbane.  She later undertook a business management course at the Kings Institute in Brisbane and stopped studies in October 2013.  Ms Kaur told the tribunal that she and her first husband commenced living apart in July 2010.  He couldn’t get a job in Brisbane and moved to various locations in Queensland looking for work.  She stated that the relationship ended in 2011.  Her first husband was going out with another woman.  There were no children from that relationship.

9. Ms Kaur told the tribunal that she met Mr Singh in 2010, when she was still living in Brisbane.  The relationship developed while she was studying in Brisbane.  She used to fly to Townsville to be with Mr Singh.

10. Ms Kaur told the tribunal that she has lived at the same address as Mr Singh for some years.  No one else lives at the address.  Mr Singh works full-time as a mechanic and has done so for the last three years.  Ms Kaur works on a casual basis for a local BP service station.  They each have their own bank account as well as a joint bank account, which they use to pay the bills.  They are also saving to visit India.  Ms Kaur stated that they transfer money from their respective accounts into the joint account.  Ms Kaur also stated that her name is on Mr Singh’s credit card.  Ms Kaur indicated she is a beneficiary of her husband’s superannuation account.  They do not have any joint loans.

11. Ms Kaur told the tribunal that their respective families support the relationship.  She indicated that her husband became an Australian citizen on 17 July 2014 and that she attended the ceremony.  They have taken holidays together.  For example, they went to Brisbane to attend a friend’s wedding.

12. There are no children from the relationship.

13. Ms Kaur indicated that Mr Singh returned to India 2012 to meet her parents.  She added that she was unable to go because of financial reasons.  Ms Kaur told the tribunal that Mr Singh has been in Australia since 2009.  He is a mechanic by trade and was sponsored.  He has never previously been married.

    Mr Singh’s evidence

14. Mr Singh told the tribunal that his relationship with Ms Kaur became strong in 2012.  By this stage he had moved from Brisbane to Townsville.  However, they used to visit each other frequently.  Mr Singh indicated that in the end of 2012 he went to India, so that his permanent visa could be approved.  While India he met Ms Kaur’s parents.  The tribunal noted that at that stage Ms Kaur was not yet divorced from her first husband.  Mr Singh stated that there were no issues at all from either side of the family.  Mr Singh also added that he had met Ms Kaur’s ex-husband when he was living in Brisbane.  

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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.

16. Ms Kaur claims to be the spouse of the sponsor Mr Singh who is an Australian citizen.

17. ‘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 husband and wife 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 as to 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), which is extracted in the attachment to this decision.

18. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spousal relationship met?

19. According to the visa application Ms Kaur and Mr Singh met on 15 August 2010 in Brisbane and formed a relationship in August 2012.  They indicated that they commenced a de facto relationship from 19 March 2013 and at the time were living in Townsville.  They were legally married on 10 January 2014.  Ms Kaur provided some statutory declarations, a lease agreement and a copy of a joint bank statement in support of the visa application.

20. Following the application for review the tribunal received a variety of additional material including telephone records, statements, cards, photographs, tenancy agreement, utility bills, bank statements and other miscellaneous material.  Following the hearing the tribunal received copies of the parties’ personal bank statements as well as some travel records.

21. Regarding the financial aspects of the relationship, bank statements provided show that the joint bank account was originally used in a peculiar way.  In particular frequently an amount of money would be transferred into the account and then withdrawn the same day.  However more recently various expenses such as utility bills and grocery payments appear to be made from the joint account.  The tribunal was provided with copies of Mr Singh’s and Ms Kaur’s personal bank accounts, which shows that at least in recent times there is a pooling of financial resources.

22. The parties claim to have cohabitated since March 2013.  Their evidence is supported by various residential tenancy agreements and common correspondence to the same address.  There are no children from the relationship.

23. The tribunal was provided with a number of photographs showing the parties in a variety of social situations.  The tribunal also was provided with various statements from relatives and friends attesting to the relationship.  The tribunal was also provided with evidence that the parties have taken holidays together.

24. The parties gave evidence to the effect that they are in a committed relationship and that they provide each other with companionship and emotional support.  Both parties gave evidence to the effect that they see themselves as being in a long-term relationship.

25. The tribunal acknowledges that there are some concerns in this case.  Ms Kaur’s original marriage which enabled Mr Dhaliwal to come to Australia appears to have been a marriage of convenience.  In addition, the joint bank account, at least at the beginning of the relationship, appears just to have been opened solely for the purposes of the visa application.  However, after reviewing the large amount of supporting material and the all evidence of the respective parties, the tribunal is prepared to give benefit of the doubt and accept that Ms Kaur and Mr Singh were in a genuine spousal relationship at the time of the visa application and continue to be in such a relationship at the time the decision.

26. Ms Kaur meets the time of application criteria in cl.820.211(2)(a).  She also satisfies the sponsorship and Schedule 3 criteria required in cl.820.211(2)(c) and (d).

27. Therefore Ms Kaur meets cl.820.211(2) cl.820.221.

28. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

29. The tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.211(2) of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations.

    Alan Duri
    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).