1500466 (Migration)

[2016] AATA 3139

1500466 (Migration) [2016] AATA 3139 (21 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Seeniyar Rasalinkam

VISA APPLICANT:  Mrs Thanusha Rasalinkam

CASE NUMBER:  1500466

DIBP REFERENCE(S):  BCC2014/52513

MEMBER:Kira Raif

DATE:21 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 21 January 2016 at 11:45am

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 24 December 2014 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Sri Lanka, born in October 1991. She applied for the visa on 20 December 2013 on the basis of her relationship with her sponsor, the review applicant. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 and cl. 309.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 21 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly to this matter the primary criteria include cl.309.211 and cl. 309.221. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

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 review applicant’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. The parties were marred in Sri Lanka in November 2013. There is nothing before the Tribunal to indicate the marriage is not a valid one. The Tribunal is satisfied on the evidence before it that 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. The Tribunal has had regard to the documentary evidence provided with the application, as well as the parties’ oral evidence. The Tribunal notes that limited documentary evidence of the relationship has been provided.

8. The Tribunal has considered the various aspects of the relationship. The Tribunal accepts that following the breakdown of his marriage, the sponsor decided to seek another partner to support the family and help him take care of the children. The Tribunal has considerable concerns about the speed with which the applicant’s relationship with the sponsor, given that they agreed to marry within two days of meeting each other, but the Tribunal is mindful that this may be in accordance with the couple’s cultural norms.

9. The Tribunal has considered the financial circumstances of the relationship. The applicant provided evidence of several transfers made by the review applicant and the review applicant informed the Tribunal that he sends money irregularly to the visa applicant. The Tribunal accepts that evidence and accepts that the review applicant has provided financial support to the visa applicant. There is no evidence of joint ownership of assets or joint liabilities. There is no evidence of other pooling of financial resources. There is no evidence that there are any legal obligations owed to the other party and, given that the parties do not live together, there is no evidence that they share day-to-day household expenses.

10. A small number of declarations from third parties had been provided with the application and the Tribunal accepts that the declarants are aware of the relationship and view it as a genuine one.  A number of photographs had also been provided and the Tribunal accepts that in the short time the parties spent together, they had socialised together as a couple. The Tribunal accepts the review applicant’s evidence that he has had communicated with the applicant’s family members and also that the visa applicant has had contact with his siblings. The Tribunal accepts that the couple’s immediate families are aware of the relationship and support the relationship. However, there is little evidence of the wider recognition of the relationship. The sponsor was unable to name any of the applicant’s friends and he claims he met one of her colleagues whose name he could not recall. The visa applicant was also unaware of any of the sponsor’s friends, stating he had never mentioned them in their phone conversations. The Tribunal is not satisfied there is a wider recognition of the relationship beyond the immediate family. The Tribunal notes that apart from about two weeks the couple spent together at the time of the marriage, they had not spent any time together. The Tribunal is not satisfied that the parties plan and undertake joint social activities. The Tribunal is not satisfied that friends and acquaintances are aware of the marriage or view the relationship as a long term one.

11. The review applicant’s evidence to the Tribunal is that following his visit to Sri Lanka in 2013, he had not returned to Sri Lanka because of his family and work commitments. While the Tribunal accepts that the review applicant had little opportunity to travel, given that he takes care of two children, the Tribunal is not satisfied that the applicant and the sponsor have established a joint household and the Tribunal further finds that they had only spent about two weeks together from their meeting in 2013 to date.

12. The Tribunal has considerable concerns about the parties’ evidence relating to the sponsor’s children. The Tribunal is concerned that the visa applicant appears to have very limited knowledge about the children. The review applicant said his children are aged 17 and 13. The visa applicant said they are aged 19 and 14. The visa applicant could not state what year of school the children attend or what schools they attend. The review applicant said the eldest son plans to study science at university upon completion of high school while the visa applicant did not know what his future plans are. The Tribunal is mindful that care and support of the children appear to be very significant for the sponsor and he claims it was one of the primary reasons he decided to re-marry. In such circumstances, the Tribunal would expect the parties to have had some communication about the children and for the visa applicant to have greater interest in, and knowledge about, the children. The Tribunal is concerned that the visa applicant’s lack of interest in the children may be indicative of her lack of commitment to the relationship.

13. The Tribunal has considered the parties’ commitment. As noted above, the couple had spent very little time together since their meeting in 2013 and no time in each other’s company since the sponsor left Sri Lanka in 2013 ten days after the marriage. They claim to have regular communication on a daily basis and in such circumstances, the Tribunal would expect the parties to have a reasonable level of knowledge about each other. The visa applicant has not displayed such knowledge in her oral evidence to the Tribunal. For example,

    a.The review applicant informed the Tribunal he has been working for his current employer for seven years. The visa applicant first suggested 20 years, she then said one year. The visa applicant ultimately said she did not ask the sponsor how long he had his present job for and did not know.

    b.Both the visa applicant and the review applicant stated that the review applicant bought the place where he now lives. The visa applicant could not state how much is owed on the property and did not now the sponsor’s income. The visa applicant admitted that she knew little about the sponsor’s financial circumstances.

    c.The review applicant spoke to the Tribunal about his previous relationship and was visibly upset when discussing the breakdown of his previous marriage. It appears to be a matter of significant concern to the sponsor. However, the visa applicant informed the Tribunal that she did not know anything about that relationship, did not know when it broke down or what caused it to break down. Given the significance of that matter to the sponsor, the Tribunal is concerned that the parties have not had any discussion on the issue despite their frequent communication since 2013.

    d.The review applicant informed the Tribunal he plays and coaches tennis and used to do track and field in the past. The visa applicant said he plays tennis but has never done any other sport.

14. The Tribunal acknowledges that some these mattes may not be of great significance, but they are important because in the Tribunal’s view, they represent the visa applicant’s lack of interest in the review applicant’s affairs and daily life. The review applicant suggested to the Tribunal that the visa applicant does not ask him questions and he does not discuss such things. The Tribunal is not satisfied that the parties have established adequate communication or that the visa applicant has sufficient interest in the sponsor’s life. The Tribunal is not satisfied that the couple draw on each other for emotional support and companionship. The Tribunal is not satisfied that the visa applicant is committed to this relationship or that she views it as a long term one.

15. Overall, the Tribunal accepts that some aspects of the relationship may suggest it is a genuine and committed one. In particular, the Tribunal has had due regard to the provision of financial support by the review applicant to the visa applicant and to the fact that their families support the relationship. Against these considerations, the Tribunal notes that even though they have been married for over two years, the couple had spent very little time together before and since the marriage, the Tribunal is not satisfied they have adequate knowledge about each other and the Tribunal has formed the view that the visa applicant does not have adequate interest in her husband’s affairs. Considering the circumstances as a whole, the Tribunal is not satisfied that the visa applicant and the review applicant had a mutual commitment to a shared life together as husband and wife. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied they live together or do not live apart on a permanent basis. The Tribunal is not satisfied the visa applicant is the spouse of the sponsor. She does not meet cl. 309.211 and cl. 309.221.

    Conclusion

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

    DECISION

17. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Kira Raif
    Senior Member