1512157 (Migration)

[2016] AATA 4334

1512157 (Migration) [2016] AATA 4334 (1 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PANKAJ KHANDELWAL

CASE NUMBER:  1512157

DIBP REFERENCE(S):  BCC2014/1963042

MEMBER:Kira Raif

DATE:1 September 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.211(2)(a) of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations.

Statement made on 01 September 2016 at 10:05am

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 3 September 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in February 1980. He applied for the visa on 11 August 2014 on the basis of his relationship with the sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and cl. 820.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 1 September 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by his registered migration agent. The issue before the Tribunal is whether the applicant is the spouse of the sponsor. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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).

5. 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.

6. ‘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).

   Are the parties validly married?

7. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided with his application a copy of the marriage certificate showing the couple registered their marriage in July 2014. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied 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?

8. The Tribunal found the applicant and the sponsor to be truthful and credible witnesses.

9. There is evidence before the Tribunal to show that the couple reside together. There is before the Tribunal a copy of the couple’s lease agreement and various letters addressed to the same address. More importantly, the couple’s evidence concerning their living arrangements was detailed and consistent. The Tribunal is satisfied that the couple live together and have established a joint household. The Tribunal is satisfied they share the housework.

10. The Tribunal has considered the financial aspects of the relationship. The applicant provided to the Tribunal evidence of operating a joint bank account as well as other financial arrangements such as life insurance and funeral insurance. The Tribunal is mindful that some of these were arranged in 2015 and appear to have been arranged for the purpose of the visa application. Nevertheless, the Tribunal is satisfied that the couple operate a joint account and both contribute towards living expenses. The Tribunal is satisfied they pool their financial resources and have sought to establish joint liabilities.

11. There are statements from third parties, including friends and relatives, concerning the relationship. There is also photographic evidence of the couple’s joint social activities. The Tribunal is satisfied that the couple represent themselves to others as being married. The Tribunal is satisfied that third parties, including family members and acquaintances, view the relationship as a genuine and committed one. The Tribunal accepts the partners’ evidence about the close relationships they have with each other’s family members. The Tribunal is satisfied the persons plan and undertake joint social activities.

12. The Tribunal notes the parties have been married since July 2014 and claim to have been in a relationship since 2012. To date, the marriage existed for a period exceeding two years. The Tribunal is satisfied on the basis of the couple’s oral evidence that the couple provide each other with companionship and emotional support and that they provide comfort to each other. The Tribunal is satisfied they have made thoughtful plans for their future together and that they view the relationship as a long term one. The Tribunal places weight on the fact that they have made attempts to start a family and the sponsor’s earlier pregnancy. That supports the Tribunal’s view that they view the relationship as a long term one.

13. The Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to shared life to the exclusion of others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together. Given these findings the Tribunal is satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship. The Tribunal is satisfied the applicant meets cl.820.211(2)(a) and cl.820.221.

    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 820 visa.

    DECISION

15. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.211(2)(a) of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member