1822779 (Migration)

[2022] AATA 3795

1822779 (Migration) [2022] AATA 3795 (17 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Uday Mishra (MARN: 0215810)

CASE NUMBER:  1822779

MEMBER:Brygyda Maiden

DATE:17 August 2022

PLACE OF DECISION:  Melbourne

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) visa:

·cl 820.211(2) of Schedule 2 to the Regulations; and

·cl 820.221(1)(a) of Schedule 2 to the Regulations.

Statement made on 17 August 2022 at 8:40pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – financial, household and social aspects of relationship and nature of commitment – length of relationship and marriage – initially limited documentary evidence, consistent oral evidence and supporting statements from family and friends – sponsor’s travel by herself for family, surgery and education-related work experience – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cls 820.211(2), 820.221(1)(a)

CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the “Act”).

2. The applicant is [Age 1] years old, from India and applied for the visa on 22 April 2016 on the basis of his relationship with his sponsor, who is [Age 2] years old. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.221(a) because the delegate found that the applicant did not meet the definition of spouse or de facto partner under s 5F or s 5CB of the Act.

4. The applicant and sponsor appeared before the Tribunal on 10 August 2022 to give evidence and present arguments. The hearing was held virtually by MS Teams and the parties confirmed at the commencement of the hearing that they were happy to proceed with a hearing by MS Teams video conference.

5. The applicant was represented in relation to the review by a registered migration agent. The parties were assisted by an interpreter in the Punjabi and English languages.

6. Attached to the applicant’s application for review dated 7 August 2018, was a copy of the delegate’s decision. The applicant also submitted submissions made by the sponsor dated 3 August 2022 which the sponsor confirmed in the hearing were accurate (the “Submissions”).

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Consideration of claims and evidence

8. The issue in the present case is whether the applicant is in a spouse or de facto relationship with the sponsor for the purposes of cl 820.211(2)(a).

   Are the parties in a spouse or de facto relationship?

9. 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 the applicant claims to be the spouse of the sponsor who is an Australian citizen. The Department file contains a copy of the sponsor’s visa grant notice which indicates that the sponsor was on 7 April 2011 granted a Skilled (Migrant) (Class VE) Skilled – Sponsored (Subclass 176) visa, which is a permanent resident visa. The applicant provided the Tribunal with a copy of the sponsor’s Australian Citizenship certificate dated 16 November 2021.

10. ‘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 parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Department’s file contains a copy of the Victorian Births, Deaths and Marriages Registration Act 1996 (Vic) marriage certificate which indicates that the marriage was solemnised by the applicant and the sponsor [in] December 2015. On the evidence, the Tribunal accepts 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). However, this evidence alone does not in the Tribunal’s view demonstrate a mutual commitment to a shared life together or a relationship that is genuine and continuing.

    Are the other requirements for a spouse relationship met? Consideration of reg 1.15A matters

12. In order to ascertain whether the requirements for a spouse relationship are met, the Tribunal has considered the Department file [Number], the Tribunal file, the documents submitted by the applicant to the Tribunal, and the oral evidence that was provided by the applicant and the sponsor.

    Financial aspects of the relationship

13. The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.

14. Both parties provided oral evidence at the hearing that they had no joint assets or liabilities. The Tribunal accepts this evidence.

15. The delegate’s decision record indicates that the parties had a joint [Bank 1] account, and transaction listings were provided from 4 December 2015 to 15 January 2016. The parties gave consistent oral evidence that the parties no longer use this account as there were no benefits offered by [Bank 1] to them. Accordingly, they opened a joint [Bank 2] account, as the applicant already had his own [Bank 2] accounts. The sponsor testified that she could not remember whether or not the account was still open, and the Tribunal was not provided any documentation in relation to [Bank 1] account to confirm that position. Therefore, although the Tribunal accepts that this account existed prior to the date of application, because the Tribunal has not been provided with any further documentation in relation to this account and because the applicant was not sure whether or not it was still open, the Tribunal gives this evidence little weight at the time of decision.

16. The parties have a joint [Bank 2] [specified] account (the “Joint Account”). The applicant provided most statements or transaction histories from 1 July 2018 until 24 July 2022, which indicate that the account was opened on 8 November 2017. As it is not clear from the evidence whether [Bank 1] account is open or not, the Tribunal cannot be certain whether from 2016 until the Joint Account was opened in November 2017 that the parties operated a joint account.

17. The Joint Account reveals (which is consistent with the applicant’s evidence) that his income is being paid into it. The sponsor testified that her wages go into her own [Bank 3] bank account, which the Tribunal was not provided statements of. The applicant also testified that he has his own [Bank 2 internet banking] savings account where the parties are saving their money to purchase a house and which the sponsor could access via phone banking. The sponsor gave consistent oral evidence that she had access to this account through the [Bank 2] phone application, she knew the account personal identification number (PIN) and volunteered the balance of the account being around $270,000 (the “Savings Account”). No statements of the Savings Account were provided to the Tribunal. The sponsor also maintains her own [Bank 3] savings account where funds are put for emergencies.  The example that the sponsor provided was hospital visits. She stated that the parties have a mutual understanding about this and have discussed it. The Tribunal accepts that it is not uncommon for persons in a relationship to have a combination of their own accounts and joint accounts and still pool financial resources.

18. The sponsor gave evidence that she has phone banking access to the Joint Account but not card access which the Tribunal found unusual. The Joint Account records a number of transfers out of the account to the sponsor with notations such as “Transfer to [Sponsor] [Bank 2] App wife gift” or a similar notation ending in “wife love”, some of which were highlighted on the statements by the applicant, for example on 5 July 2018 and 31 December 2020. When asked about these transactions, the sponsor explained that the parties shared everything, and in 2018 the applicant had made transfers to the sponsor for car instalments, they shared the payment of the sponsor’s university fees and the applicant keeps sending her whatever he likes. According to the applicant’s testimony, the man holds more responsibility. Although on its face the Joint Account seems to indicate that the parties have operated it together for almost five years, there is a period between 2016 and the opening of the Joint Account where it is not clear whether or not the parties had a joint account, the sponsor’s access to the Joint Account appears to be more limited than the applicant’s, the applicant seems to be the main operator of the Joint Account, and only the applicant’s wages go into the Joint Account, at the time of decision the Tribunal only gives the pooling of financial resources some weight.

19. The sponsor’s Submissions stated that the applicant gifted her an iPhone X and upgraded the sponsor’s plan as it was financially beneficial. The Department file indicates that on 9 April 2018 the applicant entered into a contract with [Telecommunications provider] commencing on the same day for an upgrade of the applicant’s existing contract to an iPhone X. The phone number on the plans ends in 464. The applicant’s Application for Review dated 7 August 2018 lists his number as ending in 464 whereas the sponsor lists her number in the Submissions as ending in 995. The documentation does not appear to indicate that the applicant has entered into a contract with [Telecommunications provider] to take legal responsibility for the sponsor’s phone. Instead, it appears to be an upgrade of the applicant’s existing phone arrangements and therefore the Tribunal gives this evidence little weight in terms of whether one of the parties owes any legal obligation in respect of the other.

20. Consistent oral evidence was given by both parties that neither had a will.

21. The applicant testified that although he had a [superannuation] account, he never checks it, and has not made any changes to it, however he stated that he was the beneficiary of the sponsor’s superannuation account. Consistent with the applicant’s evidence, the applicant submitted a copy of letters from [Financial services provider] dated:

    a.13 July 2019 which shows the binding non lapsing superannuation beneficiary in the name of the applicant; and

    b.21 September 2019 which confirms that the applicant is the sole beneficiary of the sponsor’s superannuation account and has held a binding nomination since July 2018.

    The sponsor in her evidence also confirmed that the applicant was the beneficiary of her superannuation account.

22. The Tribunal acknowledges that superannuation beneficiary nominations can quickly and easily be changed however, in this instance the nomination is binding, and has been in place for over four years, therefore, in considering whether one person in the relationship owes any legal obligations in respect of the other, the Tribunal gives this evidence some weight.

23. The Joint Account indicates considerable sharing of day-to-day household expenses, for example (not an exclusive list): stationery (Officeworks), rent, travel (Aussizz Travel Pty Ltd, Searoad Ferries Queenscliff), petrol (Caltex, United, BP), carwash (Washed), groceries (Woolworths, Coles, Satnam Indian Grocer), bakery (Meydan Market Bakery), green grocer (Colonial Fruit Company), utilities ([Energy], [Water]), department stores (Kmart), electricals (JB Hi Fi), entertainment (Kingpin Crown, Village Knox and Hoyts), payment plans (Fines Vic), food deliveries (Uber Eats), tax office payments, fast food (KFC, Nando’s, Subway, Dominos), gambling (Sportsbet Pty Ltd), restaurants and bars (Marmara Restaurant, Spice Lounge, Shahi India, Biriyani House), clothing (Connor Clothing), tolls (Linkt Melbourne), telecommunications ([Provider 1]), hardware (Bunnings), internet ([Provider 2]), medical appointments ([Clinic]), alcohol (1^st Choice), insurance ([Car insurer 1]) and pharmacy (My Chemist). As there is significant transactional evidence in the Joint Account for almost five years the Tribunal gives this evidence in relation to the sharing of daily household expenses weight.

24. The following bills were submitted by the applicant:

    a.[Car insurer 2] insurance schedule dated 15 April 2016 for [Vehicle 1] for third-party property damage in the name of the applicant with both parties listed as drivers. The sponsor in her Submissions stated that the payments of the policy were at this stage made by the applicant as she did not have enough income;

    b.Internet ([Provider 2]), the applicant provided an e-mail from [Provider 2] dated 31 December 2019 indicating that the sponsor has been added as an authorised representative on the account;

    c.[Energy provider], however, these bills are made out to [Company name] and made to the attention of both parties, at their [Suburb 1] address from 14 March 2019 until 26 August 2020.

    The delegate’s decision raised the issue of the electricity bills being addressed to [Company name] and that the parties had not provided any indication that they had any involvement in the business. At the hearing the applicant gave evidence that [Company name] trading as [Business name] was a business started by the sponsor and her father and was a [Business type] which sold [Product] and has since been sold. Both parties gave oral evidence that they had worked there. The sponsor’s Submissions contain copies of ASIC documents indicating the registration of the business name [Business name, Suburb 2] on 7 December 2016 and [Company name] on 15 June 2016. The applicant also provided some pages of a Transfer of Lease for a property located in [Street, Suburb 2] (which is the address of the principal place of business listed on the registration of business name document for [Business name, Suburb 2]). It is not clear on what date the transfer occurred, but it appears to be signed on behalf of [Company name] by the sponsor and her father and witnessed by the applicant. The Submissions state that the reason that the bills were made out to the company was the parties “…got a cheaper deal with [Energy provider] for both our house and business hence we clubbed [sic] it together to save on our expenses.” This is consistent with oral evidence given by the applicant and statements of the Joint Account which show transfers to [Energy provider]. The Tribunal accepts the evidence in relation to [Company name].

    d.[Energy] bills in both parties’ names from 21 October 2020 to 27 June 2022;

    e.[Water] bills addressed to both parties issued from April 2019 until July 2022;

    f.[Car insurer 3] insurance policy for a [Vehicle 2] in both parties’ names and for both the applicant and sponsor as drivers for the period of 25 June 2020 to 25 June 2021;

    g.[Car insurer 1] certificate of cover for a commercial courier, in both parties’ names with both parties represented as drivers for a [Vehicle 3] for the period of May 2020 to May 2021;

    h.[Car insurer 1] certificate of comprehensive insurance for a private use vehicle ([Vehicle 4]), in the applicant’s name with both parties being listed as insured drivers for the period June 2021 to June 2022; and

    i.[Car insurer 1] certificate of comprehensive insurance for a private use vehicle ([Vehicle 4]) in the applicant’s name with both parties being listed as insured drivers from the period 2 June 2022 to 2 June 2023.

25. The applicant submitted Ambulance Victoria membership paid [in] December 2019 showing both parties as members and a letter from Ambulance Victoria dated [September] 2020 addressed to both parties indicating that both parties are Ambulance Victoria members and that the renewal date of their membership is [December] 2020. Given the number of joint utility bills and insurance bills provided by the applicant the Tribunal gives this evidence some weight.

26. Other than holding a joint bank account together and an insurance schedule for a motor vehicle in the applicant’s name that lists both parties as drivers, the Tribunal finds that there is little evidence of the financial aspects of the parties’ relationship at the time of application. That being said, limited financial information is not necessarily inconsistent with the stage of life and [the age of the parties] at the time of application. Accordingly, the Tribunal places some weight on the financial aspects of the relationship at the time of application.

27. At the time of decision, the parties have no joint assets or liabilities. The parties have held a joint account starting with [Bank 1] account prior to the date of application, and have held the Joint Account for almost 5 years. It appears that the applicant is the main operator of the account, only his wages are paid into it and the sponsor has less access to the Joint Account (in that her access is by telephone only) than the applicant. There is some evidence presented to the Tribunal that one of the parties owes a legal obligation to the other. A significant number of joint utility bills and a number of joint insurance certificates were provided to the Tribunal which is consistent with the sharing of day-to-day household expenses. The Tribunal gives the evidence in relation to the financial aspects of the relationship some weight and finds it consistent with the parties sharing their life together and a genuine and continuing relationship.

    Nature of the household

28. The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.

29. The Tribunal accepts that the parties have no children together.

1. According to the delegate’s decision record, the parties claimed to have lived with the applicant’s cousin in [Suburb 3] after their marriage in 2015 but provided limited evidence of this. The sponsor’s Submissions contain a copy of a letter from the Department of Immigration and Border Protection dated 26 October 2017 (“Government Letter”) to the sponsor which indicate the [Suburb 3] address and a copy of a [Bank 2] statement in the applicant’s name (the “Applicant’s [Bank 2] Account”) for the period of 31 December 2015 to 30 June 2016 at the same address. The difficulty with the Government Letter is that it was dated 26 October 2017 and parties gave consistent oral evidence at the hearing that they lived in [Suburb 3] from December 2015 to June 2016 and at a different property from mid-2016. According to the Government Letter the sponsor applied for a visa on 24 October 2017 and presumably would have listed her current residential address. This causes the Tribunal to have doubts about the parties living together from 2015. However, the Department file also contains a copy of the applicant’s and sponsor’s individual tax returns (summaries) for 1 July 2016 to 30 June 2017. Both list an address at [Suburb 1] as their home address which is consistent with the parties’ evidence that they moved out of [Suburb 3] in mid-2016. In the Tribunal’s view, there is limited evidence to suggest that the parties commenced living together in December 2015 and lived together in [Suburb 3] until mid-2016.

2. The parties gave similar oral evidence that they moved into a rental property in [Suburb 1] from mid-2016 until 2019, and then moved to another rental property on the same street from 2019 where they currently reside. The Tribunal has had regard to the following documents:

   a.a copy of a lease on the Department file in both parties’ names dated 28 June 2018 and signed by both parties for [Address 1, Suburb 1] for the period of 8 July 2016 to 7 July 2017. The delegate expressed concerns about the genuineness of this document as it was dated 28 June 2018 and signed on the same day for a lease period supposedly from mid-2016 to mid-2017.

   The Submissions contain a document from the agent of the property dated 28 June 2016 (the “Agent Document”) (unlike the lease which is dated 2018) addressed to both parties (but only signed by the agent on 27 June 2016, there is a signature block for the tenants’, but it has not been completed) indicating that the bond had been paid by the parties on 28 May 2016 and the rent in the amount of $1520 was due on 27 June 2016. The Submissions also contain some partial pages of the Applicant’s [Bank 2] Account which suggest that rent was paid on 27 June 2016 (the notation includes the words “rent [Address 1]”). The Tribunal finds that there is some evidence to suggest that the parties rented a property together from June 2016 to 7 July 2017.

   There is a gap of approximately a year between mid-2017 and mid-2018 where neither a lease nor bank statements have been provided by the applicant to corroborate the parties’ evidence. However, the Department file does contain a [Vehicle 2] service tax invoice addressed to the sponsor dated 21 August 2017, [Water] bills for the property dated 17 January 2018 and 15 May 2018, a [Telecommunications provider] confirmation of upgrade dated 9 April 2018 in the sponsor’s name all of which list the address of the property.

   The Joint Account statements reveal that rent for the property was being paid by the parties from July 2018 until October 2019 as the BPay reference numbers in the statement match those in the Agent Document. There is some documentation to support the parties’ oral evidence that they lived at [Address 1] from mid-2016 until October 2019;

   b.a lease submitted by the applicant dated 30 October 2019, in both parties’ names for a property located at [Address 2, Suburb 1] for a term of 12 months, from 16 October 2019 to 15 October 2020, and a bond receipt dated 22 November 2019 in the name of both parties;

   c.a residential tenancy agreement submitted by the applicant from 16 November 2020 to 15 March 2021 in both parties’ names and signed by both parties for [Address 2, Suburb 1]; and

   d.trust account receipts for [Address 2, Suburb 1] submitted by the applicant showing payment on behalf of the parties from 20 January 2020 until 19 July 2022. The July receipt indicates that rent is paid up until 15 August 2022.

3. The parties gave oral evidence that their current residence is a two-bedroom apartment with the parties sleeping in the master bedroom. A flatmate (which the sponsor stated the parties found through Facebook Marketplace who helps the parties with the rent) is in the other bedroom. Having a flatmate is consistent with the oral evidence of both parties that they are saving to buy a house. The Tribunal accepts the evidence as to the parties’ current living arrangements.

4. The parties gave similar oral evidence about the inside of their bedroom, the number of pillows on their bed and colour of their bedding which in the Tribunal’s view is indicative of and consistent with the parties’ evidence that they live together. The Tribunal gives this evidence weight.

5. At the time of application, the Tribunal finds that there is limited evidence of the living arrangements of the parties and therefore, gives this evidence little weight. At the time of decision, particularly over the last couple of years, there is stronger more consistent evidence of the parties’ living arrangements. Accordingly, the Tribunal gives this evidence weight.

6. The Tribunal explored how the parties shared housework. The applicant gave evidence that his wife does the laundry, kitchen and makes dinner, and he does other cleaning and the bins. The sponsor gave consistent oral evidence about her contribution, and stated that the applicant does the vacuuming, bins, cooks breakfast and cleans the bathroom. According to the sponsor the applicant works seven days a week doing [work] with a [company] and is also working with [Employer 1], and the sponsor works five days a week at [Employer 2]. Therefore, the Tribunal finds the division of labour consistent with the volume of paid employment the parties do and gives the sharing of the housework weight.

7. At the time of application, the Tribunal finds limited evidence of the nature of the household and accordingly gives this evidence little weight.

8. At the time of decision, the parties have no children, are living together and seem to reasonably apportion their housework. The Tribunal finds the evidence in relation to the nature of the household is consistent with the parties being in a genuine and continuing relationship and living together and not separately and apart on a permanent basis and gives this evidence weight.

   Social aspects of the relationship

9. The Tribunal has considered evidence of the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.

10. The Department file contains copies of the parties’ wedding photos with friends and the individual tax returns 2017 (1 July 2016 to 30 June 2017) of both parties wherein each lists the other as their spouse. The sponsor also uses the title “Mrs”. The Department file also contains copies of the sponsor’s individual tax return 2018 where she uses the title “Mrs” and notes the applicant as her spouse.

11. The applicant submitted:

    a.one page of his individual 2019 tax return showing the sponsor as his spouse;

    b.[a Health services provider] personal details form showing the sponsor as the applicant’s wife;

    c.[a Health services provider] patient discharge information sheet dated 26 January 2021 showing that transport of the applicant was arranged by his wife;

    d.[a Health services provider] medical certificate from 25 January 2021 to 1 February 2021 of the applicant noting the sponsor as the applicant’s wife and that she would be the carer of the applicant;

    e.a copy of the sponsor’s social media account with the picture of the applicant and wishing her as his “wife” a happy birthday; and

    f.various transfers out of the Joint Account to “Transfer to [Sponsor] [Bank 2] App wife gift” or “Transfer to [Sponsor] [Bank 2] App wife love”.

12. On the day of the hearing the Tribunal asked the applicant to show the Tribunal his Facebook page on his mobile phone and his status was set to married. The sponsor gave evidence that she does not have a Facebook account.

13. At the time of application there is limited evidence of the parties representing themselves to third parties who are not family, friends or acquaintances as being married. The Tribunal gives this little weight. At the time of decision there is a reasonable amount of evidence of the parties representing themselves to third parties as being married to each other. The Tribunal gives this evidence some weight.

14. In terms of the opinion of friends and acquaintances about the nature of the parties’ relationship, the Department file contains the following form 888 statutory declarations, from:

    a.[Mr A] (dated 12 April 2016), who was a witness at the parties’ marriage. At that stage he had known the sponsor for 2 years and the applicant for 1 year, and he states the parties love each other, seem happy together and have a really strong relationship.

    b.[Mr B] (dated 14 April 2016), who stated he used to work with the applicant and at the time of the declaration knew the applicant for 2 years and 4 months and the sponsor for 9 months. [Mr B] states that the applicant had shared many personal talks with him and their wives were good friends, the applicant loves his wife, and [Mr B], his wife and the parties normally get together once a month. He stated that the sponsor’s “…parents also come to my home for a family dinner and they were also so happy with this relationship the way they are in deep love.”

    c.[Ms C] (dated 15 July 2018), who at the time of making the declaration had known the sponsor for 4 years and the applicant for 2 years and 6 months. [Ms C] states that she knows the applicant as he is best friends with her husband and regularly would visit and became a part of the family. [Ms C] stated that the parties visit the [temple], and on weekends go to the movies and dinner and she and her husband sometimes accompany them.

15. There are two affidavits on the Department file. The first is dated 9 December 2015 and is sworn by the applicant’s parents and indicates that they arranged the marriage of their son the applicant to the sponsor. The second is sworn by the sponsor’s parents and dated 14 April 2016, that they have arranged the marriage of their daughter the sponsor to the applicant. The sponsor’s parents swore a further affidavit on 5 July 2018 that the relationship between the parties is genuine, they are happy and support each other, and both parties have a good relationship with the sponsor’s parents. In March 2016 according to the sponsor’s Submissions, her parents came to visit the parties from India. This appears to be consistent with photographs of the parties and the sponsor’s family including for example at Phillip Island and the Melbourne Star. Of the applicant’s family, the sponsor stated that she has only met the applicant’s father who she met in Delhi after having [surgery] in January 2018. The sponsor gave oral evidence that she has spoken to the applicant’s family on the phone, and that the parties have plans to travel to India to meet with his family.

16. At the time of application, there were some statutory declarations from friends and affidavits from the parties’ parents that indicate the relationship is genuine and the families of the parties approve. The Tribunal gives this evidence some weight.

17. At the time of decision, the Tribunal gives some weight to the opinion of the parties’ friends and acquaintances as to the nature of the relationship and would have given this a higher weighting except that there was no witness evidence at the hearing and no evidence from friends and family since 2018. Given the volume of other evidence and the regularity in which the applicant has submitted documents to the Tribunal, the Tribunal notes the lack of evidence from friends, family and acquaintances.

18. The Department file contains various photographs including on the parties’ wedding day. The Submissions also include pictures of the parties with the sponsor’s family taken in March 2016. The sponsor gave oral evidence that when her family came to Australia they all stayed in a hotel in the city. The next time the sponsor’s family came to Australia was in 2017 and at that stage they stayed with the parties at [Address 1, Suburb 1].

19. The applicant submitted numerous pictures of the parties in different locations, including but not limited to the following examples: restaurants, the supermarket, water activities, bowling, at home, on birthdays, at Gumbuya World (with accompanying tickets for 20 November 2021), Arthur’s Seat (including copies of two tickets to the Arthur’s Seat Eagle which were purchased on 2 April 2021 and were valid for 12 months), [temple] and [Country]. There are also pictures with friends and family at various events and places, however, these were considerably less than the photographs of the parties together. The Tribunal acknowledges that in many instances the photographs were consistent with other evidence.  There were instances of labelling of the photographs however consistent labelling, dating and explanations of the people and events would have made the evidence more compelling.  The Tribunal gives this evidence weight.

20. The applicant also provided a booking confirmation for the parties travelling from Melbourne to [Country] on 10 December 2018 and back on 16 December 2018 (which is consistent with the photographs provided). Booking confirmation for accommodation at [Resort] in both parties’ names was also provided by the parties which shows one room and two adults. The Tribunal gives this evidence weight.

21. The applicant submitted tickets for two on Searoad Ferries in October 2018, a single entry day pass to Adventure Park Geelong in the name of the sponsor only, and a number of cinema tickets for two people.

22. The Tribunal explored the types of things the parties liked to do together. The applicant stated that when the sponsor comes home from work they have dinner together. Every week they go on an outing. An example was given of going to a movie and doing “romance”. The Tribunal enquired as to what the applicant meant by “romance” and he stated going to a movie, talking to each other and kissing. The sponsor gave consistent evidence about going to dinner and a movie often on one of her days off from work which are Wednesdays and Thursdays. The sponsor also stated that sometimes they go to the [temple] in [Suburb 4] and the parties went to dinner at the Langham in July. This evidence is consistent with photographs provided by the parties and accordingly the Tribunal gives the evidence weight.

23. At the time of application there is some evidence of the basis on which the parties plan and undertake joint social activities (for example, the photographs of the travel the parties undertook with the sponsor’s family when they visited in March 2016 and as explained in the statutory declarations on the Department file). The Tribunal gives this some weight. At the time of decision numerous photographs have been submitted to the Tribunal clearly evidencing the parties socialising together at different locations and with family and friends and the parties gave oral evidence in terms of the things they like to do together which was supported with documentary evidence. The Tribunal gives this evidence weight.

24. Overall, in terms of the social aspects of the relationship at the time of application there is some evidence of the parties representing themselves to others as being married, the Department file contains some statutory declarations from friends and affidavits from the parties’ parents that indicate the relationship is genuine and the families of the parties approve of the relationship. There is also evidence of the parties attending various social activities together. The Tribunal gives this evidence weight. At the time of decision there was a reasonable amount of evidence of the parties representing themselves to third parties as being married to each other. There was some evidence of the opinion of the parties’ friends and family but less than the Tribunal would have expected for parties that have been married for almost 7 years. There is a lot of evidence of the parties socialising together and some evidence of the parties socialising with others. The evidence of the social aspects is consistent with the parties having a shared life together and a genuine and continuing relationship.

    Nature of persons’ commitment to each other

25. The Tribunal has considered evidence of the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support that the persons draw from each other and whether the persons see the relationship as a long-term one.

26. The parties have been married for almost 7 years. The Tribunal gives this evidence weight.

27. The delegate raised concerns about the period of separation of the parties due to the time the sponsor spent out of Australia from November 2017. The sponsor’s Submissions state that there was a period from November 2017 to August 2018 that she travelled to India to spend time with her family after graduating from her undergraduate degree during the university break. The sponsor was supposed to return on 2 February 2018 but instead had [surgery] and was advised by her doctor to stay in India longer until the [medications] and routine check-ups were completed. A medical report dated 2 August 2022 from [Surgery provider] was included in the Submissions and indicated that the sponsor had [surgery] on 25 January 2018. The Tribunal accepts this evidence.

28. The Submissions indicate that the sponsor discussed with the applicant her plans to study [Subject 1] on her return to Australia. A prerequisite of the course was experience, and because of that the sponsor used the time whilst in India, to obtain experience from [Businesses and organisations]. Copies of three references for the sponsor from pet clinics and the like indicating that the sponsor undertook the work experience in 2018 are within the Submissions. The Submissions also state that on completion of the work experience the sponsor returned to Australia in August 2018. At the hearing the sponsor gave oral evidence that upon on her return and becoming aware of the unaffordable fee structure for the [Subject 1] course, the sponsor instead continued her studies in [Subject 2] and completed a Master of [Subject 2] in 2020. The applicant gave oral evidence that since the sponsor’s return in 2018 they have not travelled separately. The Tribunal accepts the reasons for and duration of the sponsor’s travel to India, notes that it is not uncommon for parties who have families abroad to travel independently of their partner to see them, and accepts that generally after a surgical procedure there are a number of follow-up appointments.

29. The parties gave consistent oral evidence that they commenced living together in December 2015. On the basis of the documents submitted by the applicant, there is limited corroboration of this and that the parties lived in [Suburb 3] until mid-2016. There is some documentation to support the parties’ oral evidence that they lived at [Address 1, Suburb 1] from mid-2016 until October 2019. Given that this property was leased by the parties, clear evidence of this should have been relatively easy for the parties to obtain. The documentary evidence is the strongest in relation to the parties living in their current residence at [Address 2], where they have been living together for almost 3 years.

1. The applicant submitted a letter dated 4 May 2022 from the sponsor to the Tribunal lodging a priority application for the applicant’s review. In that letter, the sponsor states that her:

   …family and in-laws have been through worst [sic] of health conditions due to the virus [COVID] and not being there for them has affected me [the sponsor] emotionally. I [the sponsor] have lost family members back home in India and could not be there for them. Similarly when I [the sponsor] was going through the virus and had to manage home-life balance none of my well-wishers were here to support me which has levelled up my mental stress and has affected my husband [the applicant] as well. He [the applicant] has been the strongest pillar of support for me even though, he was himself struggling with stress and depression thinking about comforting me to the fullest by providing me the emotional and mental support required as well as creating a better life for us.

2. Together with that letter were medical records pertaining to the sponsor, including her [health] levels. The sponsor testified that when she went to have [a health procedure] the applicant gave her strength, comforted her and prayed for her to help calm her down. The Tribunal accepts the sponsor’s evidence (which is consistent with the screen saver of the sponsor’s God which she showed the Tribunal on her mobile phone at the hearing) that the applicant provides her with emotional support and the substantial number of photographs submitted by the applicant of the parties and the activities they undertake together is suggestive of companionship between the parties. Accordingly, the Tribunal gives this evidence weight.

3. The applicant submitted a small number of WhatsApp chat messages seemingly between the applicant and the sponsor in May 2021. Although the messages are indicative of the parties being in a relationship and living together, given that there are relatively few messages provided and that the messages are now over a year old, the Tribunal only gives this evidence some weight.

4. The applicant gave evidence that the sponsor has supported him when his visa was refused and every time that he has been in trouble and when they had financial difficulties. Given the applicant’s evidence was not as specific as the sponsor’s and was more of a general nature the Tribunal only gives this evidence some weight.

5. The parties testified that they were saving to buy a house and then plan to have children. The applicant submitted a document from a real estate agent to both parties confirming a private inspection of a property on 25 September 2021 in [Suburb 5]. Oral evidence of the sponsor is consistent with the parties looking to purchase a house in [Suburb 5]. The sponsor’s evidence in relation to the Savings Account balance indicates that there is enough funds for a down payment, but she indicated that the parties wanted to have a greater down payment. As there is documentation which is consistent with the parties’ evidence that they wish to purchase a house, the Tribunal gives this evidence some weight. If the inspection records were more recent and not almost a year old the Tribunal would have afforded this evidence greater weight.

6. The Tribunal explored what would happen if the applicant was no longer able to stay in Australia, and had to return to India. The applicant gave evidence that although the parties had not spoken about this eventuality, they would be together – the sponsor would move to India. The sponsor’s evidence was consistent and stated without waiver or hesitation that the parties would both go back to India. The Tribunal puts a lot of weight on this evidence as it is indicative that the parties both see their relationship as long term.

7. There is some evidence of the nature of the persons’ commitment to each other at the time of application. The parties were married, prior to the date of application and are still married, but there is limited evidence of the parties living together.

8. At the date of decision, the parties have been married for almost 7 years, there is limited evidence that they commenced living together in 2015, there is some evidence from 2016 to 2019 and the evidence is the strongest from October 2019 onward. The Tribunal finds that the parties are currently living together. Evidence was provided of the emotional support provided by the applicant to the sponsor, there is some evidence of emotional support provided from the sponsor to the applicant and the photographic evidence is indicative that the parties draw companionship from each other. The strongest evidence in relation to the nature of the parties’ commitment to each other was in relation to whether they saw the relationship as long term, with consistent evidence that the parties would go back to India together if the applicant was sent back. The sponsor’s evidence was unwavering and unhesitating. Accordingly the Tribunal gives weight to the nature of the parties’ commitment to each other and finds that the evidence is indicative of parties that want to share their lives to the exclusion of all others, are in a genuine and continuing relationship and do not live separately and apart on a permanent basis.

   Have the time of application requirements been met?

9. The main issue for determination is whether, at the time of application on 22 April 2016, the applicant and the sponsor were each other’s spouse for the purposes of the Act.

10. Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

    This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

11. Accordingly, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

12. For the reasons provided in relation to the reg 1.15A matters, the Tribunal is satisfied that at the time of application, the applicant and sponsor:

    a.were married to each other under a marriage that is valid for the purposes of the Act as required pursuant to s 5F(2)(a) of the Act and have been married since December 2015;

    b.had a mutual commitment to a shared life as a married couple to the exclusion of all others as required pursuant to s 5F(2)(b) of the Act;

    c.had a relationship between them that is genuine and continuing pursuant to s 5F(2)(c) of the Act; and

    d.live together as required pursuant to s 5F(2)(d)(i).

13. Therefore, the Tribunal determines that the applicant and sponsor meet the definition of ‘spouse’ as set out in s 5F of the Act.

14. The ‘spouse’ requirement is not the only requirement of cl 820.211(2) which must be met. The Tribunal finds that cl 820.211(2)(a) is met as the applicant is the spouse of an Australian permanent resident (and recently citizen) and there is no information before the Tribunal indicating that the circumstances in cl 820.211(2B) apply, hence the Tribunal finds that cl 820.211(2)(a)(ii) is met.

15. The Tribunal also finds that the applicant’s spouse is over 18 years old being born in [Year] and the applicant is sponsored by the spouse. Therefore, cl 820.211(2)(c)(i) is satisfied.

16. The Department’s decision record of 6 August 2018 indicates that on 11 April 2014 the applicant was the holder of a Student (Subclass 573) visa and on 22 April 2016 the applicant lodged a Partner (Subclass 820/801) visa application. Accordingly, at the time of application the applicant held a ‘substantive visa’ as defined under s 5 of the Act, and therefore, the requirements in cl 820.211(2)(d) do not apply.

17. The Tribunal finds that at the time of application the requirements in cl 820.211(2) were satisfied.

    Has the time of decision criteria been met?

18. The Tribunal finds that the applicant continues to meet the requirements in cl 820.211(2) and accordingly, the applicant meets cl 820.221(1)(a) at the time of decision.

19. 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

20. 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) visa:

    ·cl 820.211(2) of Schedule 2 to the Regulations; and

    ·cl 820.221(1)(a) of Schedule 2 to the Regulations.

    Brygyda Maiden
    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).