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 any additional material by 28 March 2016. The Tribunal also indicated that it may wish to take evidence from Ms Nupponen and so requested him to provide her telephone number. Mr Singh did not provide any additional material or Ms Nupponen’s telephone number.
Mr Singh is a 26 year old Indian national. He first arrived in Australia on 8 June 2009 holding an Indian passport and a Class TU Student visa that was due to cease on 15 March 2012. He has departed and re-entered Australia on four occasions since he first arrived (not ever with Ms Nupponen, he told the Tribunal). He works as a taxi driver.
According to the visa application and sponsorship Mr Singh and Ms Nupponen met in a Brisbane suburb on 4 February 2011 and commenced a relationship two weeks later. They made a commitment to each other on 18 February 2011 and were married in Queensland on 11 January 2012. Ms Nupponen has a daughter by a former partner.
The Department’s file contains a copy of the relevant pages of Mr Singh’s passport, the marriage certificate and two statutory declarations by friends in support of the application – one by Ms Tina O’Neill and one by Mr Michael Rubon James Appleton (spelt “Micheal” (sic) in his accompanying birth certificate).
Mr Singh acknowledged that he received the Department’s email dated 14 August 2014 although he said in effect that he was not aware of the reference there to adverse information.
As described below, problems in the relationship developed to the point where Mr Singh and Ms Nupponen have not been together for years. Mr Singh claims that it is because of those problems that he has not provided evidence in support of the application. Mr Singh told the Tribunal that if he were allowed time he could “restore” the relationship and provide financial, rental and other documents. He said that Ms Nupponen has these documents.
Mr Singh told the Tribunal that he left Queensland to come to Melbourne in December 2014. That was sometime after Ms Nupponen and Mr Appleton began a relationship with each other. The relationship between Ms Nupponen and Mr Appleton began in March or April 2013 and it lasted for about a year, according to one of Mr Singh’s friends. Mr Singh said that he had lived in accommodation with Ms Nupponen and Mr Appleton but Mr Singh and Ms Nupponen started living separately when her relationship with Mr Appleton began. Mr Singh last saw Ms Nupponen about a year ago and last spoke to her in September or October 2015. She told him then that she had the documents he needed to support his application but that she could not find them. Mr Singh did not have contact with Ms Nupponen from November 2015 to March 2016, when he was in India. He said that was because he was too far away.
Ms Nupponen has been in Queensland ever since the marriage. She is studying at university and lives in student accommodation. At one point in his evidence Mr Singh said that before he went to India, on a previous occasion in 2014 (where he was at the date the visa was refused), he spoke to Ms Nupponen about the documents and she told him that she had lost them, though he remarked that he did not know if she was lying to him about that. Mr Singh mentioned the existence of a joint bank account he had with Ms Nupponen but said that it had been closed. Asked by the Tribunal whether he had done anything to obtain relevant documents apart from asking Ms Nupponen for them, Mr Singh told the Tribunal that he had been to the bank but that the bank could not provide him with anything because the account had been closed.
When asked more about Ms Nupponen, Mr Singh said that she was not aware that the hearing was taking place. To the Tribunal’s comment that he had not arranged for her to give evidence, Mr Singh said that he had just returned from India.
The Tribunal invited Mr Singh to comment on or respond to adverse information. The adverse information was that there was the allegation that the relationship was contrived (and that the allegation was generally stated in the Department’s email to him dated 14 August 2014); that the Department had investigated migration fraud involving numerous persons and, in particular, a common marriage celebrant (who was named on Mr Singh’s and Ms Nupponen’s certificate); and that Ms Nupponen had admitted to officers of the Department that the relationship was contrived and that at the time of the marriage she was in a de facto relationship with Mr Appleton. Among other things, the Tribunal informed Mr Singh that he could request additional time to comment or respond. Mr Singh began to comment or respond straight away but he also said he needed time to provide a response in writing. He said that he needed time to “improve” his relationship with Ms Nupponen and to provide documents in support of the application.
The Tribunal did not allow additional time for Mr Singh to comment or respond, considering that he did not reasonably need additional time. In particular, the Tribunal noted that he had been in Australia since 2009 and studied and worked here. He had acknowledged receiving the Department’s email dated 14 August 2014 which invited him not only to provide evidence in support of the application but also to respond to the adverse information (to the extent that the email referred to that). Mr Singh acknowledged that he could read English (and so could read the Department’s email). He nevertheless said that he was not aware that Ms Nupponen had said to the Department that the relationship was contrived. Further commenting on or responding to the adverse information Mr Singh said that he was surprised that Ms Nupponen would say that to the Department. He also said that he “hired” an Indian person to conduct the wedding and the person got “caught up” in the Department’s investigation. He repeated that he wanted time for improve his relationship with Ms Nupponen and submit documents in support.
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.
In summary, the Tribunal does not accept that there was ever a genuine relationship between Mr Singh and Ms Nupponen. The small amount of evidence that there is in support of the application is of limited probative value. On the contrary, there is evidence that the relationship was contrived and that Ms Nupponen has admitted that. Even if the Tribunal could have been satisfied that the relationship was genuine at the beginning – which the Tribunal was not – the evidence would show that Ms Nupponen was not committed to Mr Singh; that the relationship ended in the first half of 2013; and that the relationship has not been restored.
Mr Singh has had since August 2014 to provide evidence in support of the application and to comment on or respond to the adverse information but he has not done so and he has not provided a satisfactory reason for not having done so. At the least Mr Singh could have told the Department about the problems he said he was having obtaining the necessary evidence and he could have addressed the allegation in general terms, but he did not do that.
Whether the parties are in a spouse or de facto relationship
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. In the present case Mr Singh claims to be spouse of Ms Nupponen who is claimed to be an Australian citizen.
‘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.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto one. Notwithstanding the Tribunal’s reservations concerning the way in which the marriage appears to have been brought about, on the basis of the copy of the marriage certificate held on the Department’s file, the Tribunal finds that 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?
Financial aspects of the relationship
There is no or virtually no evidence before the Tribunal in relation to the financial aspects of the relationship beyond Mr Singh’s claims that he and Ms Nupponen had a joint bank account at some stage. Mr Singh gave evidence that Ms Nupponen and Mr Appleton paid the rent for the premises where they all lived. The Tribunal does not accept Mr Singh’s reasons for not being able to provide evidence in support of the application, including in relation to the claimed joint bank account and other financial aspects of the relationship. The Tribunal considers that Mr Singh has had a reasonable opportunity to provide evidence in support of the application, including evidence regarding the financial aspects, even if Ms Nupponen has not been able or willing to assist him.
Accordingly, the Tribunal places no weight on this consideration.
Nature of the household
The evidence in relation to the nature of the household is very limited. The Tribunal does not accept Mr Singh’s reasons for not being able to provide evidence in support of the application, including in relation to the nature of the household. The Tribunal considers that Mr Singh has had a reasonable opportunity to provide evidence in support of the application, including evidence regarding the nature of the household, even if Ms Nupponen has not been able or willing to assist him.
Therefore, the Tribunal places no weight on this consideration.
Social aspects of the relationship
The marriage certificate is signed by witnesses but there is otherwise no evidence before the Tribunal in relation to the social aspects of the relationship beyond the statutory declarations by Ms O’Neill and Mr Appleton. (The Tribunal notes, incidentally, that the address given in Mr Appleton’s statutory declaration is not the address at which he was said to be living with Ms Nupponen and Mr Singh and Ms Nupponen’s daughter).
Both of the statutory declarations submitted are expressed in general terms only. Mr Singh told the Tribunal that he had another friend who had made a statement or statutory declaration in support of the application, but he has not submitted that. He also said that Ms Nupponen had relevant photos, but he has not submitted any. Mr Singh told the Tribunal that his parents were aware of the marriage, but he has not submitted any evidence from them.
Therefore, the Tribunal places no weight on this consideration.
Nature of persons’ commitment to each other
The evidence does not enable the Tribunal to be satisfied in relation to the duration of the relationship; the length of time, if any, that Mr Singh and Ms Nupponen have lived together; the degree of companionship and emotional support, if any, that they draw from each other; and whether they see the relationship as a long-term one. On the contrary, there is the adverse information mentioned earlier; Mr Singh’s own evidence about Ms Nupponen’s relationship with Mr Appleton; and Mr Singh’s further evidence to the effect that his relationship with Ms Nupponen has not been restored since Ms Nupponen began her relationship with Mr Appleton.
Mr Singh’s claim that he and Ms Nupponen have been talking to each other so that, with time, the relationship could be restored is seriously undermined by his acknowledgement that he has not spoken to her since September or October 2015. And, as noted, the Tribunal does not accept his stated reasons for not communicating with her while he was in India from November 2015 to March 2016. Significantly, Mr Singh did not inform Ms Nupponen about the Tribunal hearing even though in its hearing invitation dated 16 February 2016 the Tribunal invited him to provide her telephone number so that the Tribunal could take evidence from her.
The Tribunal does not accept Mr Singh’s implied claim that, with time, it would be possible to restore what has been a genuine married relationship. It is not merely that the Tribunal does not accept that there has ever been a genuine married relationship. The evidence that there has been no contact between Mr Singh and Ms Nupponen since September or October 2015 undermines the claim that either of them would have a genuine interest in reconciliation.
The Tribunal therefore places no weight on this consideration.
On the basis of the material before it, the Tribunal is not satisfied that Mr Singh and Ms Nupponen have had and continue to have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is not satisfied that Mr Singh and Ms Nupponen live together or that they do not live separately and apart on a permanent basis.

Given these findings the Tribunal is not satisfied that at the time the visa application was made and the time of this decision Mr Singh and Ms Nupponen have been in a spousal relationship.
Therefore Mr Singh does not meet cl.820.211(2)(a) or cl.820.221.
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 Billings
Senior 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).