1727299 (Migration)

1727299 (Migration) [2019] AATA 3875 (22 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1727299
MEMBER:John Billings
DATE:22 March 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations

Statement made on 22 March 2019 at 3:32pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – credible witnesses – general migration history – motivation for entering the relationship – timing of marriage – recognition of relationship – attendance at wedding – site visit and interviews – review applicant’s health – objection to marriage – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
MIBP v Angkawijaya [2016] FCAFC 5
MIBP v Singh [2016] FCAFC 183
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 September 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The [visa applicant] applied for the visa on 22 June 2015 on the basis of her relationship with her sponsor, the [review applicant] who is a [age] year old Australian citizen. At the time [the visa applicant] applied, 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). 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 because the delegate was not satisfied that [the visa applicant] was the spouse of [the review applicant]. Although the delegate referred at the end of the decision record to cl.309.223, it is clear that the delegate was not satisfied that [the visa applicant] met the requirements of cl.309.211 and cl.309.221. The Tribunal refers further to the delegate’s reasons for decision below. Among other things, the delegate took into account the outcome of a site visit at [the visa applicant]’s village in India in February 2017 when her neighbours and parents were interviewed, and an allegation made anonymously that the relationship was contrived.
[The review applicant] applied to the Tribunal for review on 6 November 2017. He provided a copy of the primary decision to the Tribunal.
[The review applicant] appeared before the Tribunal on 7 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from [the review applicant]’s mother, [Ms A], and his grandfather, [Mr B], and, by telephone, from [the visa applicant].
[The visa applicant] has previously been represented by migration agents but there was no representative in the present review.
[The visa applicant] is a [age] year old national of India. She lived in Australia from 2008 until 2015. She arrived [in] February 2008 holding a [Student] visa. She was the secondary visa holder. Her then husband, an Indian national, was the primary visa holder. [The visa applicant] married that man in 2007. They were divorced in 2010. In the same year [the visa applicant] was granted a further Student visa. The decision record for the decision now under review contains information to the effect that while she held the Student visa [the visa applicant] did not study the relevant course. The Student visa granted in 2010 ceased on 30 November 2011. [The visa applicant] applied for a further Student visa but that was refused. In March 2013, on review, the MRT (Migration Review Tribunal) affirmed the decision on the basis that [the visa applicant] did not have confirmation of enrolment or an offer of enrolment. [The visa applicant] did not attend the [MRT hearing].
There was a further MRT review that concluded in April 2015, the month before [the visa applicant] returned to [India]. The MRT reviewed a decision to refuse [the visa applicant] a [Partner] visa. [The visa applicant] applied for that visa on 15 April 2013 on the basis of her relationship with [the review applicant]. She and he were married the day before she applied for the visa. The visa was refused on the basis that [the visa applicant] did not satisfy the criterion 3001 in Schedule 3 to the Regulations and there were no compelling reasons not to apply the criterion. The MRT affirmed the decision on the same basis, though the decision record does not indicate that the tribunal found any reason to question the genuineness of the relationship. The decision record indicates that before making its decision the MRT received oral evidence from [the visa applicant], [the review applicant], and [the visa applicant]’s relative, [Mr C][1]. ([Mr C] was an Australian citizen born in India. The Tribunal was informed at the March 2019 hearing that [Mr C] died last year after an illness. He was aged [age]). The decision record further indicates that [the visa applicant] told the MRT that she did not know about the 2013 MRT decision: she alleged misconduct on the part of the migration agent involved in that case.
[1] In the visa application [Mr C] is said to be [the visa applicant]’s uncle. In an affidavit by her parents he is said to be her father’s “cousin brother”. In a statutory declaration by [Mr C] he said that [the visa applicant] is “niece (cousin’s daughter)”
[The visa applicant] departed Australia [in] May 2015. [The visa applicant] lives with her parents in India. She is not employed.
According to the application for the Class UF visa and material in support, [the visa applicant] and [the review applicant] first met on 28 April 2011 in circumstances described below. They became friends and eventually began a relationship. On 11 January 2012 they made a commitment to each other and [the review applicant] moved into rented premises in an inner suburb of Melbourne that [the visa applicant] was sharing with her [cousin]. A few months later [the visa applicant] and [the review applicant] moved into new premises in the same suburb. [The review applicant] proposed to [the visa applicant] on 14 February 2013 and they were married on 14 April 2013. There are issues about who attended the wedding that the Tribunal will address later. In May 2013 [the visa applicant] and [the review applicant] moved into new premises in the same suburb and they lived together there until [the visa applicant] departed Australia in 2015.
The marriage was [the visa applicant]’s second marriage and [the review applicant]’s first marriage though [the review applicant] was in a de facto relationship from 2002 until 2006. [The review applicant] has a [age] year old son and [age] year old daughter from that relationship. He has contact with those children. [The review applicant] has another daughter from another relationship that predates his relationship with [the visa applicant]. [The review applicant] has a half-sister. [The review applicant] has no other siblings. (There is a photograph on the Department’s file that refers to “[Brother D]”[2] The Tribunal heard that that person is a religious brother, so that “Brother” is his title. He is a friend of [the review applicant]. The significance of this information is that [the visa applicant]’s father reportedly told officers in February 2017 that [the review applicant] has no siblings. In the context of [the review applicant]’s family relationships it is relevant to note that [the review applicant]’s birth certificate indicates that his father is unknown).
[2] At folio 86.
[The review applicant] has a history of [Medical Condition 1] and other medical conditions that the Tribunal discusses below. His [Medical Condition 1] is said to have prevented him ever travelling to India. [The review applicant] has not travelled at all outside Australia.
[The review applicant] has not been employed since he suffered [an] injury at the end of 2017 while he was working interstate as a [Occupation 1]. He has been receiving benefits.
Following the site visit in India in February 2017 the Department wrote to [the visa applicant] to invite her to comment on or respond to adverse information. [The visa applicant] provided a response that included affidavits made in mid-2017 by her, her parents, and other persons in India – the former village head, [Mr E], and [the visa applicant]’s cousin, [Mr F].
The Department’s file includes a copy of the relevant pages of [the visa applicant]’s passport; [the review applicant]’s birth certificate; [the visa applicant]’s divorce order; [the visa applicant] and [the review applicant]’s wedding certificates; wedding and other photographs; bank statements; pay records; messaging screenshots; a letter by a property manager; a Residential Tenancies Bond Authority bond receipt; a copy of [the visa applicant]’s 2013-2014 tax return; hospital and medical records; and statements, statutory declarations and affidavits in support of the application. The file also contains notes of the site visit conducted in February 2017 and the allegation made anonymously that has been mentioned above.
Further documents have been submitted to the Tribunal. They include further medical records concerning [the review applicant], especially a medicolegal report by consultant psychiatrist, [Dr G], dated 10 May 2018, written in connection with the workplace injury [the review applicant] suffered at the end of 2017. There are also further phone records; a photograph; money transfer receipts (showing transfers made by [the review applicant]’s grandfather to [the visa applicant] in 2018 and 2019); and statements in support of the application.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the case is whether [the visa applicant] is and at all material times has been the spouse of [the review applicant]. For reasons that follow, the Tribunal is satisfied about that.
In the primary decision the delegate raised a number of concerns about the case. The Tribunal has identified further matters of concern. Despite those concerns, the Tribunal has made a favourable assessment of the parties’ credibility, having had the advantage of receiving and testing oral evidence given by [the review applicant], [the visa applicant] and their witnesses.
While the Tribunal is engaged in merits review, there are points about the primary decision to be noted. There are points about the contents of the Department’s file to be noted too.
The decision record contains significant errors. One is the statement that [Mr C] did not attend [the visa applicant] and [the review applicant]’s wedding. The delegate attached particular importance to this because it had been said that [Mr C] “arranged” the marriage and that he sometimes financially supported [the visa applicant] and [the review applicant]. (The Tribunal will return to the issue whether the marriage was “arranged” and in what sense that was). In fact the marriage certificate records that [Mr C] was a witness to the marriage. In a statutory declaration that [the review applicant] made 18 June 2017 – prior to the making of primary decision – he specifically pointed out what the marriage certificate shows.
Another error in the primary decision is the statement that at the time of the site visit in India there were “no photographs available” of [the visa applicant] and [the review applicant] at [the visa applicant]’s parents’ home. The Tribunal will expand on that point later in this section of its reasons.
The Departments file contains notes[3] made in May 2016 to the effect that movement records showed that [the review applicant] was offshore at the time the parties claimed to have met and at the time of the marriage. The delegate did not refer to that information in the primary decision. The Tribunal is unable to determine whether the delegate had any regard to the information. There are no movement records on the Department’s file. The Tribunal has found no movement records for [the review applicant]. [The review applicant] gave evidence that he has never departed Australia. The evidence generally points to [the review applicant] being in Australia at all material times.
[3] At folio 296a.
There are notes from May 2016 that an officer looked at financial documents including [the visa applicant]’s NAB bank statement and credit card statement. The documents are not on file. [The visa applicant] confirmed in oral evidence that she did have a NAB account. There bank statements that are held on the Department’s file are for a joint ANZ bank account: see further below.
The Tribunal mentions that the Department’s file includes what is described as a “certificate and notification … under s.376 of [the Act]”. The Tribunal considers that the certificate is valid. As to the Tribunal’s obligations see generally MIBP v Singh [2016] FCAFC 183. The Tribunal disclosed the existence of the certificate to [the review applicant]. The Tribunal canvassed the gist of the material that it covered with [the review applicant] but the Tribunal did not consider it necessary or desirable to disclose the material.
The Tribunal now refers to the most important concerns about the case.
[The visa applicant]’s general migration history and the fact that the marriage took place so soon after the MRT affirmed the decision to refuse her a Student visa give rise to concern about her motivations. Added to this is the fact that [the review applicant]’s mother and grandfather did not attend the wedding. The delegate noted with concern specifically that [the review applicant]’s parents (that is, his mother and step-father) did not attend the wedding. [The review applicant]’s grandfather did not attend either. [The review applicant]’s grandfather told the Tribunal that he thought he and his wife were away at the time. [The review applicant]’s mother, who was a particularly impressive witness, told the Tribunal that she was informed only a very short time prior to the wedding that [the review applicant] was to going to marry [the visa applicant]. Although her father had met [the visa applicant] by that time she had not. She said that at first she was very hurt by [the review applicant]’s decision to get married without telling her. This seems at odds with a written statement of 18 May 2016 in which [the visa applicant] said that the “marriage had the full support of [the review applicant]’s family”. In any event, the Tribunal heard that within weeks of the wedding [the review applicant] took [the visa applicant] to meet his mother. [Ms A] said that it was really not long after the visit that she was “won over” by [the visa applicant]. The family welcomed [the visa applicant]. She came to be regarded as an integral part of the family. [The visa applicant] attended numerous family gatherings, especially for Easter, Christmas and birthdays. (The photographs on the Department’s file include photos of [the visa applicant] with [the review applicant] and his family. There are some photos of [the visa applicant] with [the review applicant]’s children, who he has been able to see regularly, save for when they and their mother were living interstate). [Ms A] and her father told the Tribunal that they visited [the review applicant] and [the visa applicant] at home from time to time. [Ms A] told the Tribunal about the love and affection [the visa applicant] and [the review applicant] showed each other and the care that [the visa applicant] took for [the review applicant], including when he was hospitalised after [a Medical Condition 1] attack and another time when a work injury (not the 2017 one, obviously) restricted [the review applicant]’s ability to lift things. [Ms A] said in effect that she felt sure that the parties have a mutual commitment to each other.
It is necessary to say more about [the review applicant]’s health and [Dr G’s] report of May 2018. [The review applicant]’s health is relevant for several reasons. His health, and certain other matters reported by [Dr G], impact on the Tribunal’s assessment of his reliability as a witness. And [the visa applicant]’s knowledge of [the review applicant]’s health, and the evidence about the care she has given him, is relevant to the Tribunal’s consideration of her commitment to him.
In addition to his more or less lifelong [Medical Condition 1] and his workplace injuries, [the review applicant] has experienced serious episodes of mental ill health. These include an episode when he was a young adult that resulted in him being hospitalised for a substantial period of time.
[Dr G] reported that [the review applicant] presented as “an extremely challenging historian” who presented the history “in a somewhat rambling fashion, did not answer questions directly, and was frequently sarcastic”. Those observations seem consistent with some of the letters that [the review applicant]’s has written to the Tribunal.
[Dr G] further reported that [the review applicant] ceased taking psychiatric medication in late 2017. He commented on the adverse effect that had on [the review applicant]’s mental state. [The review applicant] however told the Tribunal that he is taking medication at present (including medication that [Dr G] described as antipsychotic and antidepressant medication). The Tribunal discussed with [the review applicant] his current mental health, the medications he is taking, and the impact he perceives the drugs have on his memory and concentration.
It is reasonable to consider that [the review applicant]’s mental and emotional state is unlikely to be static. In any event, the Tribunal found [the review applicant] generally to be calm, lucid and responsive, though there were times when he became visibly distressed, especially at the mention of [Mr C] and when [the visa applicant] was giving evidence. [The review applicant] responded frankly to the Tribunal’s questions for instance about past substance abuse reported by [Dr G] and the impact that had on his mental state when he was younger.
[The review applicant] remarked that he spent only 25 minutes or thereabouts with [Dr G]. It appears that, at least from his point of view, there was not a good rapport established.
The Tribunal’s function is not to evaluate [Dr G]’ report but rather to consider [the review applicant]’s competence and reliability as a witness. The Tribunal considers that he was a competent and substantially reliable witness.
The Tribunal considers, incidentally, that it is reasonable to take [the review applicant]’s mental health history into account when examining the evidence. It is reasonable to infer that his problems have been disruptive, for [the review applicant] has recently had to move from place to place, and his phone has sometimes been disconnected, affecting his capacity to maintain constant contact with [the visa applicant]. His capacity to provide complete coherent evidence may also have been affected.
Another reason it has been important to mention [the review applicant]’s mental health and [Dr G]’ report is because the report includes information that was initially of concern to the Tribunal. For instance, the report contains references to [the review applicant]’s third child and his “sister” (his half-sister) whereas those persons were not mentioned in the visa application. More significantly, [Dr G] does not mention [the visa applicant]. Instead there is the surprising statement that [the review applicant] is a “single, separated man”. At the time [the review applicant] saw [Dr G] he was estranged from his older children. It is important to remember that [Dr G]’ focus was on [the review applicant]’s mental health in the context of the workplace injury he sustained in 2017. It is also important to remember the difficulty [Dr G] evidently had in eliciting [the review applicant]’s history. It is to be noted too that [the review applicant] did not conceal [Dr G]’ report. He chose to submit it to the Tribunal. (That was in requesting that the case be given priority). In all these circumstances, the Tribunal does not consider it to be significant that the marriage and other matters are not expressly mentioned by [Dr G].

There are these final points to make about [the review applicant]’s physical and mental health. While he appears to have been unwell only sometimes, it is reasonable to say that when he has been unwell he may have been vulnerable to exploitation. The evidence does not suggest that [the review applicant] has been exploited by [the visa applicant]. The evidence does not suggest either that [the review applicant]’s family supports the application because they want [the visa applicant] to take responsibility for him. On the contrary, the evidence satisfies the Tribunal that [the review applicant] and [the visa applicant] have the necessary mutual commitment and that [the review applicant]’s family recognises and supports the relationship because they believe the relationship to be genuine.
The Tribunal now deals with other matters that concerned the delegate and the Tribunal.
The Tribunal considers the site visit. The notes of the visit include notes of interviews that were conducted at the time. The notes are in English though the interviews were said to have been conducted in Punjabi. The interview notes are clearly not verbatim. For the most part they are presented in dot points.
It is stated in the primary decision that [the visa applicant]’s family’s neighbours “confirmed that [she was] never married”. This information was considered, from a cultural point of view, to be significant in its own right. But it was also considered to be significant that [the visa applicant]’s father reportedly told officers that “all” the neighbours were aware of her relationship with [the review applicant]. [The visa applicant] told the Tribunal that there are 500-700 people in the village. [The visa applicant] asserted, reasonably, that not everyone in the village could be expected to know her relationship status. [The visa applicant] questioned the motives of the persons who told officers that she was not married, saying that some may have been ignorant of the fact but others had been in dispute with the family and may have been motivated to do harm. [The review applicant] expressed the view that [the visa applicant]’s family would be reluctant to tell their neighbours about the marriage, given that – among other things - he is not Indian. It cannot be determined whether there were follow up questions to ascertain whether [the visa applicant]’s father intended to say that literally “all” the neighbours were aware of the relationship. In any event, material submitted in response to the Department’s invitation to comment on or respond to adverse information included affidavits from particular persons who deposed that they had been told about the marriage.
The delegate noted that the neighbours who were interviewed were evidently not aware even of [the visa applicant]’s first marriage. The concern was that the first marriage may have been arranged hastily in order for [the visa applicant] to obtain a visa to come to Australia. There may be grounds for concern about that, but it must be borne in mind that the issue for the Tribunal is whether [the visa applicant] and [the review applicant] are in a genuine spousal relationship.
Next, there were concerns about [the visa applicant]’s parents’ apparent inability to state [the review applicant]’s full name. [The visa applicant]’s father reportedly stated that [the visa applicant] was married to “[Name phonetically similar to review applicant’s first name]” but that he did not know the complete name. Especially as the notes also record that [the visa applicant]’s mother said that [the visa applicant] had married “[the review applicant]”, the problem may have been [the visa applicant]’s father’s pronunciation or the way his response was recorded. (The latter seems quite possible for, to give but one example, the notes also record that [the visa applicant] said that [the review applicant]’s mother’s name is “[Alias 1]”). The Tribunal heard that [the visa applicant]’s father, who is a farmer, attended school to year [level] only and that her mother is not educated. That was said to explain the inability to pronounce or correctly state [the review applicant]’s name in full. If [the visa applicant]’s parents were unable to state [the review applicant]’s given and family names, that would be of concern whatever their level of education. More generally, though, a fair reading of the interview notes indicates that they had greater knowledge of [the review applicant] and the relationship history than the primary decision record would suggest, albeit certainly not perfect or complete knowledge. That is not to say that there are no significant problems in what [the visa applicant]’s parents reportedly said to the officers: for instance, it is recorded that they said that the relationship was the first one for [the visa applicant] and for [the review applicant].
[Mr C]’s very important role in [the visa applicant] and [the review applicant]’s lives needs to be taken into account. [The visa applicant] and [the review applicant] called [Mr C] “[Uncle C]”. [Mr C] was personally close to both of them but he became a good friend of [the review applicant]’s grandfather as well. [Mr C] lived in New South Wales. He was a businessman. The Department’s records indicate that [Mr C] lived in Australia for decades. The Tribunal heard that [Mr C] supported the relationship from an early stage. He became aware before others members of [the visa applicant] and [the review applicant]’s families became aware that they were in a serious relationship and were living together. [Mr C]’s support for the couple extended to mediating between [the visa applicant] and her parents, obtaining their consent for her to marry [the review applicant], and representing the family at the wedding. All that is important to bear in mind when considering the cultural factors that the delegate emphasised. Because the marriage was not conducted according to [the visa applicant]’s family’s cultural practice it would not necessarily be significant that her parents elected not to let everyone know about it.
Of particular note is that, according especially to [the review applicant]’s oral evidence, [Mr C] was the one who organised the wedding. By that, the Tribunal heard and the Tribunal accepts, [Mr C] helped with the practical arrangements. The delegate was concerned that [the visa applicant]’s parents reportedly said that [Mr C] “arranged [the] marriage”. Among other things, the delegate considered it significant “in the Indian cultural context” that [the visa applicant]’s family would (in the delegate’s view) know so little about [the review applicant] if the marriage was an arranged marriage. This point may be valid if there were an arranged marriage in the usual sense of that expression. However, while the notes do also record that [the visa applicant]’s father said that [Mr C] “got [[the visa applicant] and [the review applicant]] together”, there appears to be ambiguity about all of that. The Tribunal accepts that [the review applicant] and [the visa applicant] made the decision to marry and that [Mr C] then obtained her parents’ consent, helped organise the wedding, and attended the wedding on [the visa applicant]’s parents’ behalf.
There appears to be ambiguity in a further, though less important, respect. [The visa applicant]’s father reportedly said that [the review applicant] understands Punjabi. That is not quite so. The Tribunal heard, rather, that [the review applicant] has a few basic words of Punjabi. When he communicates with [the visa applicant]’s parents, [the visa applicant] interprets.
The Tribunal has mentioned the statement in the primary decision that there were “no photographs available” of [the visa applicant] and [the review applicant] at [the visa applicant]’s parents’ home. The delegate went on to express concern that [the visa applicant]’s parents had “never seen” her sponsor. Before returning to that, the Tribunal notes that it was reported that [the visa applicant]’s parents were unable to recognise [the review applicant]’s in a collage of photos the officers showed them. The Tribunal cannot determine precisely what it was that [the visa applicant]’s parents were shown. Reiterating what she and her parents deposed in their affidavits, [the visa applicant] explained to the Tribunal that her parents were shown poor quality photocopies of photographs that made it difficult to see the faces. While the notes record that [the visa applicant]’s father said that they did not have any wedding photos, they also record that her mother said that everyone in the family saw a photo of [the review applicant] on (someone’s) mobile (phone) before the marriage. The most important point to note in this context is information that appears in the notes[4] yet for some reason is not referred to in the primary decision. The information is that while [the visa applicant]’s mother was being interviewed [the visa applicant]’s sister-in-law brought in framed family photos that included one with [the review applicant] and his family. This information tends to support [the visa applicant]’s claims that her parents had indeed seen [the review applicant]’s photo.
[4] At folio 269
Further according to the primary decision, [the visa applicant]’s parents did not demonstrate any knowledge about [the review applicant]’s health. (The site visit notes indicate that [the visa applicant]’s mother did express some knowledge, though she said only that [the review applicant] had an upset stomach. [The visa applicant] told the Tribunal that her parents did say something about [the review applicant]’s [Medical Condition 1]). The primary decision further indicates that, in response to the Department’s invitation to comment on or respond to adverse information, [the visa applicant] and her parents made contradictory statements: [the visa applicant] said she did not tell them about [the review applicant]’s health as they would be worried whereas her parents said [the visa applicant] informed them about [the review applicant]’s health and that she was worried about him. (Her parents did not say when it was that she informed them). Commenting on this at the recent hearing, [the visa applicant] said that she had told her parents only generally about [the review applicant]’s health and had not given them details. The Tribunal does not accept that explanation.
The delegate commented adversely on [the visa applicant]’s response when she was asked about her alternative plans in case the visa was not granted: she said that she could not imagine her life without the visa. In her affidavit [the visa applicant] deposed, rather, that she said that she could not imagine her life without the visa because she could not live without [the review applicant]. Whatever were [the visa applicant]’s precise words, the Tribunal accepts that she did not feel, and did not mean to convey, that it was the grant of a visa alone that was important to her, as opposed to the grant of a visa that would enable her to be reunited with [the review applicant].
Before leaving the site visit notes and considering other matters, the Tribunal observes that whatever else the notes show, they show that [the visa applicant] displayed considerable knowledge about [the review applicant].
The Tribunal now deals with some other concerns.
Whereas the claim was made that the parties used to work together, in a document setting out the history of the relationship [the visa applicant] said that they met at KFC (Kentucky Fried Chicken). [The review applicant] clarified that at first they were working at different businesses that were located near each other and they met at the nearby KFC. [The visa applicant]’s affidavit is to the same effect. The interview notes record that [the visa applicant] stated that they met “at work”. [The review applicant] said that it was only later that he started to work for the same [business] as [the visa applicant]. There seems genuine ambiguity about this.
Another concern is the property manager’s letter. The date of the letter is 30 May 2016. Among other things the letter states that [the visa applicant] and [the review applicant] were occupants of the third property from 21 May 2013 “to current”. This cannot be, of course, for [the visa applicant] departed Australia about 12 months before the date of the letter, but the Tribunal considers it likely that the misstatement reflects laxity on the part of the author rather than an intention on anyone’s part to give false or misleading information. The letter at least provides some support for claims that the parties lived together before [the visa applicant] departed Australia. A Residential Tenancies Bond Authority bond receipt dated 24 May 2013 that names [the visa applicant] and [the review applicant] as tenants of the same premises was submitted to the Department. That document provides further support.
The Tribunal now addresses the allegation made anonymously that the relationship was contrived. [The review applicant] speculated that one of two persons he had had a falling out with may have made the allegation. The substance of the allegation includes that [the review applicant] threatened to withdraw sponsorship. [The review applicant] denied that he ever did that. The Tribunal considers that the vague and untested allegation should be given no weight.
There is an issue now to discuss concerning some of the phone records. The primary decision refers to records for the period 1 December 2016 to 31 May 2017. According to the primary decision the phone number on phone bills submitted was checked and found to be a “pre-paid number” and that the Department had “information” that bills were “not normally” generated by the service provider for pre-paid numbers. The delegate therefore expressed “serious concerns” about the genuineness of the documents. The delegate went on to note [the visa applicant]’s statements during the site visit to the effect that she communicated with [the review applicant] two-three times per day but that [the review applicant] had lost his “mobile” (sic) so did not now have WhatsApp, hence they communicated only through calls over the “mobile phone”. It is not clear what is meant by that. Still the delegate noted that the call history on [the visa applicant]’s phone showed that there were calls between [the visa applicant] and [the review applicant] from 13 December 2016 to 22 February 2017. The delegate commented that the duration of the majority of calls was “very limited” – less than 10 minutes. The delegate said this indicated that there was “limited communication” between [the visa applicant] and [the review applicant].
It is not clear on what basis the delegate ascertained that [the visa applicant]’s number was pre-paid or that bills were “not normally” generated. To say that they were “not normally” generated is not to say that records were unobtainable. There is a lack of clarity in what appears at this part of the decision. But the call history shows that in the weeks preceding the site visit (which visit was not on notice to [the visa applicant], it may reasonably be inferred) she had been in contact with [the review applicant]. Generally regarding the contact between [the visa applicant] and [the review applicant], the Tribunal heard that [the visa applicant] often sent him a brief message when she was available for a longer discussion, but also that it was usual for them to have regular, brief, basic communication than regular, longer, deeper communication. The message screen shots appear consistent with that.
The final concern to mention is the most serious one. The Department’s file contains an undated letter by [Ms H], a friend of [the visa applicant]. From the contents of the letter the Tribunal infers that it was submitted when [the visa applicant] was in Australia and had to address the Schedule 3 criteria. That is, the Tribunal infers that the letter was submitted for the purpose of showing compelling reasons for waiver of the Schedule 3 criteria (so that [the visa applicant] would be able to remain in Australia while her onshore Partner visa application was being processed). By that time, of course, [the visa applicant] and [the review applicant] were married. ([Ms H] referred to “[the review applicant]” as [the visa applicant]’s husband). [Ms H] wrote that [the visa applicant]’s parents were “dead against” the relationship and hostile towards the couple. [Ms H] went so far as to say that on a visit to India she saw [the visa applicant]’s parents who threatened to harm [the visa applicant] physically and to resort to honour killing.
[Ms H]’s statements obviously contradict statements such as those in the affidavits that [the visa applicant]’s parents gave permission or support for her to marry [the review applicant]. (The interview notes also record that [the visa applicant]’s parents said that the family never had any objection to the relationship). [The review applicant] told the Tribunal that [the visa applicant]’s parents were “furious” about the relationship at first but they “calmed down” after that. Commenting on [Ms H]’s letter, [the visa applicant] said in effect that her parents did not accept the relationship until [Mr C] intervened and persuaded them to consent to it. The Tribunal does not accept that explanation: [Ms H]’s letter clearly refers to [the visa applicant]’s parents’ attitude to the relationship at a time that was after the marriage had taken place.
On the face of it, [Ms H]’s letter contains information that is false or misleading in what was a material particular in relation to the onshore Partner visa application that [the visa applicant] made in April 2013 (the issue being whether there were compelling reasons for waiving the Schedule 3 criteria). It does not appear that the visa was refused on that ground[5]. The information does undermine the parties’ credibility. It is less obvious that the information is false or misleading in a material particular in relation to the offshore visa application that is now being considered, although it does go to recognition of the relationship, albeit of a negative kind. In any event, the offshore visa application was not refused on the basis that [the visa applicant] did not meet PIC 4020. The Tribunal restricts the review to the criteria or issues that were the basis for the delegate’s decision[6]. But – very serious as this is - even if PIC 4020 were in issue there appear to be good grounds for saying that the requirements of PIC 4020(1) should be waived on the basis that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, [the review applicant], justifying the grant of a visa to [the visa applicant].
[5] As to the significance of that, see PIC 4020(2).
[6] See the President’s Direction Conducting Migration and Refugee Reviews. The Direction includes the following, at paragraph 8.2: “As a general rule, where the Minister … or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.”
The Tribunal mentions in passing that the primary decision indicates that the delegate did not give much weight to a number of the statutory declarations and affidavits submitted in support of the application. That was on the basis that the signatures could not be verified “against signature verifiable documents”. Notably, some of those statutory declarations were made by [the review applicant]’s mother and grandfather who attended the hearing and could confirm in oral evidence that they had made the statutory declarations. The Tribunal generally gives greater weight to the statutory declarations and affidavits.
To summarise this part of the Tribunal’s reasons, there are many anomalies in the case: some minor or insignificant; some serious and significant. Some can be satisfactorily explained. In at least one instance there are serious contradictions that have not been satisfactorily explained. Notwithstanding this, there is credible oral evidence about the central issues, supported by relevant documents, that has to be taken into account. The Tribunal considers that the oral evidence given by [the review applicant], [the review applicant]’s mother, [the review applicant]’s grandfather and [the visa applicant] is of sufficient weight to overcome the concerns that the Tribunal has had about the anomalies in the case. It is of sufficient weight to satisfy the Tribunal in relation to the central issues.
Whether the parties are in a spouse or de facto relationship

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.
‘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 a married couple 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 about 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), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the basis of the evidence before it, including [the visa applicant]’s divorce order and her and [the review applicant]’s marriage certificate, 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).
The Tribunal asked [the review applicant], incidentally, why he married [the visa applicant] when he did not marry the mother of his older two children. He responded by saying more or less that after previous failed relationships he was looking for the security of a married relationship.
Are the other requirements for a spousal relationship met?
Financial aspects of the relationship
There is no evidence to indicate that [the visa applicant] and [the review applicant] have ever jointly owned any real estate or other major assets, or that they have ever had joint liabilities, apart from the liability to pay rent and bills. There is no evidence that either of them has ever owed any legal obligation in respect of the other.
Concerning the extent to which, if any, there was a pooling of financial resources, especially in relation to major financial commitments, or any sharing of day‑to‑day household expenses, there are only general statements in the visa application and sponsorship and in the evidence in support of the application. In a statutory declaration dated 30 May 2016 [the review applicant] said that he paid the rent with [the visa applicant]’s help. He further declared that for years he and [the visa applicant] had been unable to save money. In oral evidence [the review applicant] described a fairly ad hoc approach that he and [the visa applicant] had to paying expenses. That sometimes extended to them acquiring furniture from their employer in lieu of wages.
There is a letter written on behalf of the ANZ Bank that confirms that [the visa applicant] and [the review applicant] opened a joint account in March 2013. The few statements for that account submitted to the Department would not satisfy the Tribunal that the account was used to pool financial resources or share day-to-day household expenses to any significant degree.
When the Tribunal inquired further about the financial aspects of the relationship, [the review applicant] and [the visa applicant] gave reasonably consistent, though quite general, evidence about accounts with other banks that [the visa applicant] had, including a credit card that was used for groceries. The documentary evidence is very limited, though the Tribunal has noted earlier that the Department’s file contains notes from May 2016 that an officer saw further documents including [the visa applicant]’s NAB bank statement and credit card statement.
The Tribunal notes the evidence that [the review applicant]’s grandfather has been sending money to [the visa applicant] in recent times. That has coincided with [the review applicant] not working.
Overall the Tribunal does not place substantial weight on this consideration.
Nature of the household
[The visa applicant] and [the review applicant] confirmed that they have talked about having their own children. They told the Tribunal that they want to have children though their evidence was not completely consistent on the point: [the review applicant] expressed the hope to have children whereas [the visa applicant] said that they had actually tried to have a child. The Tribunal finds that [the visa applicant] and [the review applicant] do not have joint responsibility for the care and support of children. However, on the basis of the oral evidence, and further evidence including a number of photographs, the Tribunal accepts that [the review applicant] has had access to his older two children and that [the visa applicant] has formed a relationship with the children along with the other members of [the review applicant]’s family. Mention is made of the children in some of the messages [the visa applicant] and [the review applicant] shared.
The Tribunal has generally noted the documentary evidence in support of claims that [the visa applicant] and [the review applicant] lived together, especially from early 2013. There was reasonably consistent evidence about the living arrangements, at least to the extent that when [the visa applicant] and [the review applicant] began living together until they were married they shared a bedroom - sometimes but not always. From the time they were married until [the visa applicant] departed Australia they shared a bedroom. The Tribunal accepts that evidence.
On the subject of housework, [the visa applicant] and [the review applicant] told the Tribunal that jobs were shared more or less equally. [The review applicant] added that, depending on which of them had the time, for instance to iron clothes or pack lunch for the other, he or she would do that. He said that he was in charge of fixing things and [the visa applicant] was in charge of cooking and decorating. The Tribunal accepts that evidence.
The Tribunal places moderate weight on this consideration.
Social aspects of the relationship
The Tribunal has substantially addressed the social aspects of the relationship, noting especially the oral evidence given by [the review applicant]’s mother and grandfather and the conclusions the Tribunal has reached about the site visit and interviews conducted in India. The Tribunal has mentioned affidavits made by other persons in India deposing their knowledge of the marriage.
There is further evidence to mention about the social aspects of the relationship. That includes numerous photos, such as photos of [the visa applicant] and [the review applicant] with his children and other members of his family in various situations. The further evidence also includes a statutory declaration made by [Mr C] in 2017; an undated letter by [Mr I], a former workmate of [the review applicant]; and an email dated 20 June 2017 by [Mr J], proprietor of a business [the visa applicant] and [the review applicant] patronised from August 2013.
On the basis of this evidence, the Tribunal finds that [the visa applicant] and [the review applicant] have represented themselves to other people in Australia and in India as being married to each other. The Tribunal has had regard to the opinion of their friends and acquaintances about the nature of the relationship. The Tribunal notes the photographs and the oral evidence of [the review applicant]’s mother and grandfather in particular. The Tribunal accepts that [the visa applicant] and [the review applicant] regularly planned and undertook joint social activities when they were together in Australia, especially after they were married and [the visa applicant] was welcomed into [the review applicant]’s family.
Further concerning the representations that the parties have made about the relationship, the Tribunal mentions that [the visa applicant]’s 2013-2014 tax return indicates that she declared [the review applicant] to the Australian Taxation Office as her spouse.
The Tribunal places substantial weight on this consideration.
Nature of persons’ commitment to each other
There is scarce documentary evidence to support claims that the relationship was in existence as long ago as January 2012, but there is sufficient evidence for the Tribunal to be satisfied that the relationship was in existence at least as long ago as April 2013 when [the visa applicant] and [the review applicant] were married. The Tribunal accepts that the relationship is of at least six years’ duration. The Tribunal further accepts that [the visa applicant] and [the review applicant] lived together as partners for more than two years before [the visa applicant] departed Australia.
The Tribunal accepts the evidence that since [the visa applicant] departed Australia, which was nearly four years ago, she and [the review applicant] have maintained the relationship in spite of the difficulties that [the review applicant]’s health has caused and the practical problems there have been with his phone. As noted, [the review applicant] has never been outside Australia. The Tribunal accepts that [the review applicant]’s [Medical Condition 1], if not also his financial situation, has prevented him travelling to India. On the face of it, it is significant that [the visa applicant] has not been back to Australia to see [the review applicant]. When the Tribunal inquired as to whether [the visa applicant] had ever applied for a Visitor visa, [the visa applicant] and [the review applicant] gave consistent evidence to the effect that she had not, because a former migration agent advised that there was “no point” and that even if she were granted a Visitor visa she would have to go offshore again in order to be eligible for the Partner visa. The Tribunal accepts the evidence on this point.
The Tribunal heard not just from [the visa applicant] and [the review applicant] but also from [the review applicant]’s mother and grandfather about the degree of companionship and emotional support that they draw from each other. The Tribunal accepts that there is considerable companionship and emotional support that they draw from each other. In particular, the Tribunal accepts the evidence that [the visa applicant] has cared for [the review applicant] when he has been in hospital or otherwise unwell.
The Tribunal further accepts that [the visa applicant] and [the review applicant] see the relationship as a long‑term one.
The Tribunal places substantial weight on this consideration.
[The visa applicant]’s immigration history may indicate that she has sought various ways to obtain visas. As noted in MIBP v Angkawijaya [2016] FCAFC 5, a decision-maker may take into account the motivation of one or both of the parties for entering the relationship. Those motivations may change. The “critical issue” is whether or not the decision-maker is satisfied that the parties were in a genuine relationship at the relevant time. The Court observed that a motivation to remain in Australia is not “mutually exclusive” to there being a genuine relationship: at [62]. In the present case, [the visa applicant] may be motivated to obtain a visa. The Tribunal nevertheless accepts that her relationship with [the review applicant] is genuine.
Having regard to the above matters, the Tribunal is satisfied that [the visa applicant] and [the review applicant] have, and at all material times have had, a mutual commitment to a shared life as a married couple to the exclusion of all others and that the relationship between them is and at all material times has been genuine and continuing. Further, the Tribunal is satisfied that the parties lived together from before the marriage in 2013 until [the visa applicant] departed Australia and that they have not lived separately and apart on a permanent basis. Since they began living together they have lived separately and apart only when they have been in different countries.
On the basis of the above considerations, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.
Therefore [the visa applicant] meets cl.309.211 and cl.309.221.
Given the Tribunal’s findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations
John Billings
Senior Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15ASpouse
(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).

[2019] AATA 3875

22 March 2019

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