1420853 (Migration) - [2016] AATA 3703

1420853 (Migration) [2016] AATA 3703 (5 April 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jaspinder Singh
CASE NUMBER:  1420853
DIBP REFERENCE(S):  CLF2012/23146
MEMBER:John Billings
DATE:5 April 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 05 April 2016 at 5:15pm

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 2 December 2014 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Mr Singh, applied for the visa on 6 February 2012 on the basis of his relationship with his sponsor, Ms Myshell Sarah Nupponen, who is claimed to be a 28 year old Australian citizen. At the time he applied, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.221. The delegate noted that Mr Singh did not respond to an invitation by the Department made in email dated 14 August 2014 to provide further evidence in support of the application. The Department’s email also contained an invitation to comment on or respond to adverse information (an allegation that the relationship was contrived for migration purposes) but the primary decision was not made on the basis of Mr Singh’s non-response to the adverse information.
Mr Singh appeared before the Tribunal on 4 April 2016 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
Mr Singh’s appearance by telephone occurred in circumstances where by email dated (Saturday) 2 April 2016 he requested a postponement on medical grounds. On the morning of the hearing the Tribunal informed Mr Singh by email that the hearing would not be postponed and that the reason was because the Tribunal considered the medical certificate he submitted (which referred simply to reported back pain and unfitness “for duty”) to be insufficient. An officer of the Tribunal contacted Mr Singh and drew his attention to the email. Mr Singh said that he could attend by telephone.
The hearing date had already been delayed at Mr Singh’s request because in November 2015 he notified the Tribunal that he would be going offshore for four months. Mr Singh departed on 29 November returned to Australia 21 March 2016. In its hearing invitation letter, sent to Mr Singh by email on 12 February 2016, the Tribunal requested him to provide…

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.

Continue reading 1420853 (Migration)

Details

AGLC: 1420853 (Migration) [2016] AATA 3703
Case: [2016] AATA 3703
Decision Date: 5 April 2016

CaseChat Overview and Summary

The case of 1420853 (Migration) involved a decision by the Tribunal to affirm the refusal of a Partner (Temporary) (Class UK) visa application by Mr Singh. The central issue was whether Mr Singh and Ms Nupponen were in a genuine and continuing spousal relationship. The Tribunal concluded that the evidence did not support the claim that they were in such a relationship, noting that the available evidence was of limited value and that there was information suggesting the relationship was contrived. The Tribunal also found that Ms Nupponen's relationship with Mr Appleton indicated a lack of commitment to Mr Singh.

The legal issues before the Tribunal included assessing the genuineness of the relationship between Mr Singh and Ms Nupponen and whether Ms Nupponen had the requisite commitment to a shared life with Mr Singh to the exclusion of all others. The Tribunal considered relevant case law, including Cao v MIAC, which discussed the impact of extramarital sexual encounters on the commitment required for a spousal relationship. The Tribunal concluded that Ms Nupponen's relationship with Mr Appleton demonstrated a lack of the necessary commitment to Mr Singh.

The Tribunal's reasoning was grounded in the evidence presented and the applicable legal principles. The Tribunal found that the evidence did not establish a genuine spousal relationship, and the information about the relationship being contrived further undermined the claim. The relationship with Mr Appleton indicated that Ms Nupponen did not maintain the required commitment to Mr Singh, thus negating the primary requirement for the visa.

The Tribunal affirmed the decision not to grant the applicant a Partner (Temporary) (Class UK) visa, as Mr Singh did not meet the criteria for a spousal relationship under the Migration Regulations. The Tribunal did not find any alternative criteria to support the application, and there was no evidence to support any such claims.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether Mr Singh and Ms Nupponen are in a genuine and continuing spousal relationship. The Tribunal is not satisfied about that. The small amount of evidence that there is in support of the application is of limited probative value. On the other hand, there is information that the relationship was contrived and that Ms Nupponen has admitted that to the Department. The evidence that Mr Singh gave concerning the relationship between Ms Nupponen and Mr Appleton would also indicate that, even if from his point of view there had a genuine relationship between Mr Singh and Ms Nupponen in the beginning, Ms Nupponen did not have the required commitment to him. Riley FM, as she then was, made the following remarks in Cao v MIAC [2007] FMCA 225 at [42]:[I]t is a matter of fact and degree in the circumstances of the particular case whether an extra-marital sexual encounter indicates a lack of the required commitment to a shared life as husband and wife to the exclusion of all others. The regulations mean that a person is not a spouse as defined if he or she is party to another marriage-like relationship. Sex is only one part of such relationships and is obviously not unique to such relationships. Sex does not, of itself, mean that the relationship in which it occurs is a marriage-like relationship. The regulations do not exclude a person from being a spouse as defined if he or she engages in an extra-marital sexual encounter, provided that it is not in the context of a second marriage-like relationship and provided that he or she continues to have a commitment to a shared life as husband and wife with his or her spouse. In Cao there was evidence that the sponsor was having “an affair” that had lasted at least three months. The Court noted that the Tribunal did not actually decide that there had been such an affair but said that it was open to the Tribunal to consider that an affair of that duration was indicative of a lack of the necessary commitment: at [44]. In a very different context, recent authority indicates that something less than - or other than - “another marriage-like relationship” may permit a finding to be made that a party to a marriage lacks a commitment to a shared life as husband and wife to the exclusion of all others: see Nguyen v MIAC [2016] FCCA 32 at [48]-[50]. In Cao the Court observed, among other things, that there are people who remain in marriage for decades who nevertheless during that time have “numerous, short term, extramarital sexual encounters involving no significant emotional investment”: at [43]. In the present case – putting to one side the general lack of evidence in support of the application and the information that the relationship was contrived – the Tribunal concludes that, whatever Mr Singh’s commitment to Ms Nupponen, she has not had the necessary commitment to him. Ms Nupponen and Mr Appleton were living together before the time Mr Singh said the relationship between those other persons began. In saying that his relationship with Ms Nupponen had not been restored he was effectively saying that the relationship came to an end when Ms Nupponen commenced her relationship with Mr Appleton. Mr Singh and Ms Nupponen had spoken to each other since that time, but the last occasion was in September or October 2015. The Tribunal notes that Mr Singh did not stay in contact with Ms Nupponen when he was in India between November 2015 and March 2016. The Tribunal does not accept the reason he gave for that – that he was a long way away.

Decision

Reasons for decision

There is no claim that Mr Singh satisfies any of the alternative criteria in cl.820.211(7), 820.211(8), 820.211(9), 820.221(2) or 820.221(3) and there is no evidence that would support any such claim.DECISION The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.John BillingsSenior MemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).

Ratio Decidendi

Legal Principle Established

The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.John BillingsSenior MemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).