1417146 (Migration)

[2015] AATA 3717

1417146 (Migration) [2015] AATA 3717 (18 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr RAMAN KUMAR VERMA

CASE NUMBER:  1417146

DIBP REFERENCE(S):  CLF2011/9219

MEMBER:Kira Raif

DATE:18 November 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2)(c) of Schedule 2 to the Regulations.

Statement made on 18 November 2015 at 9:58am

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 15 October 2014 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in August 1987. He entered Australia in February 2008 holding a Student visa. The applicant applied for the Partner visa on 22 December 2010 on the basis of his relationship with the sponsor. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate was not satisfied that the applicant was the spouse of the sponsor. The delegate noted that the applicant was required to provide evidence of his ongoing relationship with the sponsor but failed to do so. The applicant informed the Tribunal that this was due to an error by his them migration agent and he provided to the Tribunal evidence of a successful complaint to OMARA against the agent.

3. The applicant appeared before the Tribunal on 18 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

5. ‘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 visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3).

   Are the parties validly married?

6. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. When making the application, the applicant provided to the Tribunal a copy of his marriage certificate showing the marriage was registered in December 2010. There is nothing before the Tribunal to indicate the marriage was not a valid one. 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?

7. As noted above, the primary application was refused due to the limited evidence provided by the applicant and the applicant explained the reasons for that. The Tribunal does not draw any adverse inferences from the fact that the applicant did not respond to the delegate’s request for additional evidence. The Tribunal notes that the applicant provided additional materials to the Tribunal and the Tribunal has had regard to his written evidence, as well as the oral evidence of the parties.

8. The Tribunal found the parties to be credible and truthful in their evidence. They gave detailed and consistent evidence about various aspects of the relationship.

9. With respect to financial aspects, the applicant provided evidence of joint accounts and joint amenity bills. They gave consistent evidence about their savings and expenses and how the couple’s financial obligations are being met. The Tribunal accepts that the parties pool their financial resources and share their day to day household expenses.

10. The Tribunal is satisfied the parties live together as they gave consistent evidence about their living arrangements and provided evidence of joint lease and copies of various letters sent to one address. The Tribunal accepts the evidence that the couple had been planning to have children for the past four years and had undergone treatment. The sponsor is presently pregnant and the couple expect their first child in May 2016. In the Tribunal’s view, that is a strong indication of the couple’s commitment to the relationship and the fact that they view it as a long term one.

11. There is evidence from third parties that they view the relationship as a genuine one and a long term one. The Tribunal is satisfied that the parties represent themselves to others as being married and the Tribunal is satisfied that they plan and undertake joint social activities.

12. The Tribunal notes that the couple had married in 2010 and the relationship has been in existence for over five years. The Tribunal is satisfied that the parties are committed to each other and provide companionship and emotional support to each other. The Tribunal is satisfied they view the relationship as a long term one.

13. Having regard to all the circumstances of this relationship, the Tribunal is satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant meets cl.801.221(2)(c).

    Conclusion

14. 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 801 visa.

    DECISION

15. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(2)(c) of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member