1508901 (Migration)

[2016] AATA 3087

1508901 (Migration) [2016] AATA 3087 (19 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Avijnan Mitra

CASE NUMBER:  1508901

DIBP REFERENCE(S):  CLF2015/29605

MEMBER:Susan Pinto

DATE:19 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 19 January 2016 at 12:39pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of India, aged in his late 20s. The applicant entered Australia holding a Subclass 600 (Visitor) visa in February 2015. The applicant applied to the Department of Immigration for the Student visa on 15 May 2015. The applicant made the application for the Student visa as a member of the family unit of Ms Anne Doreen Jaegar, a citizen of Germany, aged in her early 30s. The applicant and Ms Jaegar claimed that at the time of application they were in a de facto relationship.

2. The delegate decided to refuse to grant the visa on 30 June 2015. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.574.322 which requires that the applicant is a member of the family unit of Ms Jaegar, the primary visa holder.

3. The applicant appeared before the Tribunal on to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s de facto partner, Ms Jaegar.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   RELEVANT LAW

5. The issue in the present case is whether the applicant is the member of the family unit of Ms Jaegar: that is whether he is the 'spouse' or de facto partner of Ms Jaegar (cl.574.322). The term “member of the family unit” is defined in r.1.12 of the Regulations. Under that definition, a person who is the spouse or de facto partner of the holder of a Student (Temporary)(Class TU) visa is a member of the family unit of the visa holder. The applicant and Ms Jaegar are not legally married. The Tribunal must consider, therefore, whether they were in a de facto relationship at the time of the application.

6. Section 5CB of the Act provides that a person is a de facto partner and is in a de facto relationship with another person (whether of the same sex or different sex) where those two people are not in a married relationship but have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

7. Regulation 2.03A requires student visa applicants who claim to be in a de facto relationship to have been in the de facto relationship for the 12 months immediately preceding the date of application unless the applicant can establish compelling and compassionate circumstances for the grant of the visa.

   CLAIMS AND EVIDENCE

8. As indicated above, the applicant was included in the application of Ms Anne Doreen Jaegar. The evidence on the Department file indicates that Ms Jaegar sought the application to continue with her PhD studies.  

9. The applicant and Ms Jaegar stated on the application form that they commenced their de facto relationship on 20 February 2015. They also stated that they are currently living together in Darlinghurst in Sydney.

10. The applicant provided a statutory declaration in support of the application in which he discussed the development of his relationship with Ms Jaegar. He states that she travelled to India because her friends were getting married. The applicant attended the wedding of their mutual friends, Resh and Victoria, and they met at the wedding. He states that during the course of the wedding festivities they interacted with each other and realised that they liked each other. Before Ms Jaegar flew back to Sydney they met at the airport and decided to “give our situation a chance”. As it was not possible for the applicant to travel to Sydney they decided to meet in Bangkok in February because it is a “cheaper option”. It was during that trip they decided to make their relationship “mutually exclusive”. They have travelled on four or five different occasions over the last year, including to Singapore in May and August and Bangkok and Phuket in November. Ms Jaegar also flew to Mumbai in January and they went to Goa and to Colombo in Sri Lanka and from there they travelled together to Sydney. They arrived in Sydney on 20 February 2015 and began living together. The applicant states that the long distance made it very difficult and they now wish to commit to their relationship in Sydney. They plan to apply for a Temporary Work visa which would allow them to work and take their relationship forward.

11. Ms Jaegar also provided a statutory declaration in support of the relationship between herself and the applicant. Ms Jaegar states that after she and the applicant first met they spent as much time together as possible but were only able to spend a week at a time together due to their work commitments. She also states that for the applicant’s birthday in October 2014 she purchased him tickets for the World Cup India game and the final in Melbourne. He came to the cricket and to visit their common friends whose wedding they attended in Melbourne. She also states that in early January 2015 she transferred $20,000 into the applicant’s account to assist them to establish their life together. She further states that they are serious about their relationship and future together and have registered as a couple at the NSW Birth, Marriages and Death and have set up joint accounts.

12. A submission was also provided from the representative who submits that the applicant and Ms Jaegar have been in a de facto relationship since 20 February 2015 and a mutually exclusive relationship since February 2014 whilst holidaying together in Thailand. It was also submitted that the applicant and Ms Jaegar registered their relationship with the NSW Registry of Births, Deaths and Marriages. Documents provided to the Department included hotel bookings and evidence of flights taken by the applicant and Ms Jaegar to the destinations where they have holidayed together, as well as documentation showing that Ms Jaegar travelled to India in December 2014. A Commonwealth Bank account, opened on 20 April 2015 in the applicant and Ms Jaegar’s joint names, was also provided.

13. Further evidence provided in support of the application included a statement from Ms Susana Jimenez who states that she was aware of the relationship between the applicant and Ms Jaegar from the time Ms Jaegar travelled to India and met the applicant. Ms Jiminez states that she met the applicant in in February 2015 when he came to Australia and she believes they have a “beautiful de facto relationship” and have worked hard to establish their relationship initially overseas and then in Australia. Other statements of support were provided by Reeve Koelymeyer, a friend who spent time with the applicant and Ms Jaegar when they travelled to Sri Lanka and India in January 2015. A statement of support was also provided from Mr Vishnu Nair, a doctoral student and research assistant at Macquarie University, who states that he noticed how their relationship has grown and matured and they have made a commitment to be together. Photographs of the applicant and Ms Jaegar together were also provided, as well as a more recent bank statement.

14. Additional documents provided to the Tribunal included further travel bookings and records of the applicant’s and Ms Jaegar’s travel together in 2015. More recent bank accounts were also provided to the Tribunal.

15. At the Tribunal hearing held in December 2015, the applicant and Ms Jaegar provided further evidence of their relationship. The Tribunal explained that it appears that although they are currently very committed to their relationship, the fact that they only travelled together and stayed with each other for a week at a time does not indicate they were in a de facto relationship for the 12 months prior to the date of application. The applicant stated that due to the long distance nature of their relationship it was difficult to establish that they were in a de facto relationship. The Tribunal explained that they applied for the visa in May 2015 and the applicant had arrived in Australia in February 2015, and it does not appear that they were in a de facto relationship prior to that time. The applicant stated that he quit his job in India and travelled to Australia and this indicates that they were planning to have a relationship together. The applicant also stated that the concept of a de facto relationship does not exist in India and it is very difficult to establish. Ms Jaegar stated it is very difficult to show that they were in a de facto relationship because they did not have a country where they could be together. The applicant stated that it was because of the distance they had to live separately and if it were not for their work and Ms Jaegar’s study commitments they would have lived together. Ms Jaegar believes that the only aspect that was missing from their relationship was the fact that they were not living together.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Was there a de facto relationship in existence at the time of application?

16. The Tribunal has considered whether the applicant and Ms Jaegar were in a de facto relationship in the 12 months prior to the date of application. In considering this issue, the Tribunal has had regard to the documentary and oral evidence. This visa application relates to a Student visa, which is not one of a number of prescribed types of visas for which the Tribunal must consider specific factors set out in r.1.15A(3) to determine whether a de facto relationship exists. However, the Tribunal considers that such factors provide some guidance when considering whether a de facto relationship exists. Whilst not requiring the applicant and Ms Jaegar to establish they meet each of these factors, the Tribunal has had regard to factors such as the financial aspects of their relationship; the nature of their household; the social recognition of their relationship and the nature of their commitment. Having considered all of the evidence, the Tribunal is not satisfied that the applicant and Ms Jaegar were in a de facto partner relationship in the 12 months prior to the date of application. The Tribunal's consideration of the evidence and its reasons for reaching these conclusions follows.

17. The Tribunal accepts that the applicant and Ms Jaegar commenced a de facto relationship in February 2015 when the applicant came to Sydney to permanently and they are currently fully committed to their relationship. The Tribunal also accepts that they travelled and stayed together in February 2014 and then met for a week in different locations every 3 months and lived together in India in late 2014. The Tribunal also accepts that they maintained communication through Skype and telephone contact and there was some financial aspect to their relationship and a social aspect because it was recognised by family members and friends. The Tribunal also accepts the submission made by the representative that the relationship was mutually exclusive from February 2014. The Tribunal also acknowledges the reasons as to why they did not live together, but is nevertheless not satisfied that the evidence establishes that they were in a de facto relationship for 12 months before the date of application. The Tribunal considers, as submitted by the representative, that their relationship became de facto in February 2015 when they commenced living together. The Tribunal considers that although they were travelling to meet each other regularly, their relationship became more permanent and in the nature of a de facto relationship when they commenced living together in February 2015 in Sydney, which is when they established joint financial arrangements, established a household together and also registered their relationship. As stated above, although the Tribunal accepts that they had spent a week at a time together in different countries over the year and maintained contact, the Tribunal does not accept that this establishes that they were in a de facto relationship during that time.

18. Having considered all of the evidence, the Tribunal is not satisfied, at least in the 12 months prior to the date of application which is from May 2014 when the applicants were still essentially only meeting and spending time together in different countries whilst maintaining regular contact, that the relationship between the applicant and Ms Jaegar was in the nature of a de facto partner relationship. The Tribunal finds that the applicant does meet the definition of a de facto relationship in s.5CB in the 12 months before the date of application. The Tribunal is also not satisfied that there are any compelling and compassionate circumstances for the grant of the visa.  The Tribunal finds, therefore, that the applicant was not a member of the family unit of Ms Jaegar at the time of application. Accordingly, the Tribunal finds that the applicant does not satisfy cl.574.322 of Schedule 2.

19. There is no suggestion that the applicant meets any of the primary criteria for the grant of a student visa or the requirements of any other subclasses within the Student Class TU visa class.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Susan Pinto
    Member