2111916 (Migration)

[2022] AATA 3396

2111916 (Migration) [2022] AATA 3396 (12 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Pratibha Sharma (MARN: 1802657)

CASE NUMBER:  2111916

MEMBER:Margie Bourke

DATE:12 August 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 12 August 2022 at 5:45pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Federal Circuit and Family Court remittal – genuine and continuing relationship – validly married – limited written and documentary evidence of financial, household and social aspects of relationship and nature of commitment while living in different countries – not necessary to consider possibly false and misleading evidence about when relationship started and parentage of children – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359AA, 375A
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.321

CASE
He v MIBP [2017] FCAFC 206

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 Immigration on 20 August 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant applied for the visa on 10 February 2017 on the basis of her relationship with the sponsor, the review applicant. At that time, 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.

3. The delegate refused to grant the visa on the basis that the first named visa applicant did not satisfy cl.309.211 because the delegate was not satisfied the first named applicant had provided sufficient evidence to meet the requirements of a spousal relationship within the meaning of s.5F(2). The delegate was not satisfied that the two secondary visa applicants met the secondary visa criteria in cl.309.321. The Department’s decision record is dated 20 August 2019.

4. The applicants applied for a review of the Department’s decision. The Tribunal, differently constituted, in a decision dated 16 April 2020, found the Tribunal did not have jurisdiction to determine the review.

5. The Federal Circuit Court by consent order dated 19 August 2021, remitted the matter back to the Tribunal, with the direction the Tribunal did have jurisdiction to determine the review. The Federal Circuit Court order found that if the Tribunal looked at the entire application for review, the correct person had applied for a review of the Department’s decision.

6. The Tribunal had regard to its objectives to provide a mechanism for review that is fair, just, economical, informal and quick. The Tribunal had regard to the circumstances of the review applicant, and the fact that the three visa applicants were overseas at the time of the review, and would therefore give their evidence by either telephone or video. The Tribunal had regard to the nature of the review. The Tribunal noted that the hearing did not require a large quantity of paperwork to be put to the applicant by the Tribunal during the course of the hearing. The Tribunal was of the view that the conduct of the hearing by video would allow the review applicant the opportunity to give evidence and present arguments, and would allow the Tribunal to conduct a fair and effective hearing and to properly assess the evidence before it. The hearing was scheduled at a time when the availability of in-person hearings was restricted by the ongoing pandemic. For all the above reasons the Tribunal decided that this was an appropriate matter where the hearing should be conducted by way of video.

7. The review applicant appeared before the Tribunal on 8 August 2022 by video to give evidence and present arguments. The review applicant attended by video from his representative’s office. The Tribunal received oral evidence from a witness [Ms A], the sister of the first named visa applicant, and who attended by video from the representative’s office. The Tribunal received oral evidence from the first named visa applicant who attended the hearing by video. The conduct of the hearing was assisted by an interpreter in the Punjabi and English languages. The interpreter attended the hearing by video.

8. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing by video with the review applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Preliminary issue

10. The issue to be determined in the review: – the applicant’s representative provided a submission to the Tribunal prior to the hearing in which she outlined that the reason for the refusal identified in the Department’s decision record was that the visa applicants did not meet public interest criteria 4020 and 4021 for the purposes of satisfying the requirements of cl.801.226.

11. At the outset of the hearing the Tribunal clarified that the applicant had applied for a subclass 309 visa, and the Department’s decision record dated 20 August 2019, had refused the application for a subclass 309 visa on the basis that the first named visa applicant did not meet the requirements of cl.309.211, and the second and third named visa applicants did not meet the secondary criteria. The review applicant stated that he had applied for a subclass 309 visa, and he had applied for a review of the Department’s decision to refuse his application for a subclass 309 visa. The review applicant and his representative stated that the main issue to be determined in the review was whether the first named visa applicant met the requirements of cl.309.211, and particularly whether the first named visa applicant is the spouse of the sponsor for the purposes of cl.309.211 at the time of application. The Tribunal accepts that the submissions provided to the Tribunal by the representative in relation to the issues to be determined in this review were provided in error.

    Evidentiary issues

12. Non-disclosure certificate issued under s.375A of the Act: – the Department issued a certificate under s.375A of the Act dated 20 September 2021 in relation to information on Department file [number]. The Tribunal provided a copy of the certificate to the applicant and invited the applicant to provide written submissions as to the validity of the certificate. The Tribunal had not received any written submissions from the applicant. In the hearing the applicant stated that he had provided a response to the Tribunal advising that he accepted the certificate was valid.

13. The Tribunal is of the view that the s.375A certificate dated 20 September 2021 is valid, as it is signed, dated, records the reason why the information should not be disclosed, and properly engages s.375A of the Act.

14. The Tribunal is satisfied based on correspondence from the Department to the applicant, responses by the review applicant and first named visa applicant to the Department, and information in the applicant’s representative’s submission to the Tribunal, that the applicant is aware that representatives from the Department conducted a home site visit in 2018 at the village of the visa applicants, and were advised by people from the village of the following:- (i) that the review applicant and first named visa applicant were not married in 2016 as claimed, but were married 10 years earlier; (ii) that the children (the second and third named visa applicants) of the first named visa applicant are not the adopted children of the review applicant as claimed, but are the biological children of both the first named visa applicant and the review applicant; (iii) that the first named visa applicant was not previously married to another man who is the claimed father of the second and third named visa applicants.

15. This is information that the Tribunal is satisfied the review applicant has provided comments and responses to in the representative’s submissions, and the Tribunal is not therefore required to put the information of the fact of the home site visit or what some people told the Departmental offices during the home site visit, to the review applicant pursuant to either s.359A or s.359AA. Further this is not adverse information that suggests the relationship between the review applicant and the first named visa applicant is not a genuine spousal relationship.

16. However, some of the information prohibited from disclosure by the s.375A certificate is adverse information, and the Tribunal considers that to discharge its procedural fairness obligations, it was appropriate to give the applicant clear particulars of the gist of this information pursuant to s.359AA of the Act.

17. The gist of the relevant adverse information that is prohibited from disclosure by virtue of the s.375A certificate was put to the applicant pursuant to s.359AA in the hearing. The particulars of the relevant information is that the protected information relates to an assessment of whether the review applicant and/or first named visa applicant had provided false and misleading information, and/or bogus documents to the Department, and whether the review applicant or the first named visa applicant had engaged public interest criterion 4020 as a result of providing false or misleading information and/or bogus documents. The information that is prohibited from disclosure included assessment and recommendations that the Department could take that course. The Tribunal discussed the relevance of the Department’s assessment that the review applicant or first named visa applicant had provided false or misleading information and evidence to the Department, and the evidence the review applicant provided about the relationship with the first named visa applicant may not be reliable evidence for the Tribunal. The Tribunal advised that if it relied on information that the review applicant and first name visa applicant had provided false and misleading information to the Department, or unreliable information or evidence to the Department, this may be a reason why the Tribunal finds that the evidence that the review applicant and first named visa applicant has previously provided or gives to the Tribunal is not reliable. The Tribunal advised that if it relied on the information to find that the evidence before it was not reliable, this is relevant to whether it would be satisfied that the parties are in a genuine and continuing relationship. The Tribunal advised that if it found the review applicant and first named visa applicant are not in a genuine and continuing relationship, this would be the reason or part of the reason for finding the first named visa applicant and review applicant are not in a spousal relationship within the meaning of s5F(2). The Tribunal advised that if the Tribunal was not satisfied the review applicant and visa applicant were in a genuine spousal relationship this would be the reason or part of the reason for affirming the decision under review.

18. The review applicant stated that he understood the particulars of the information, its relevance to the review, and the consequences if the Tribunal relied on this information. The Tribunal adjourned the hearing for a short period of time to allow the review applicant to consult with his representative.

19. After the adjournment the review applicant stated he wished to respond in the hearing. The review applicant stated that his relationship with the first name visa applicant started in 2016. He stated that after he married the first named visa applicant he adopted the two children from her previous husband. The review applicant stated that the first named visa applicant and the two children came to visit him and stayed with him for three months in 2017 and six months in 2018 in Australia as the holder of visitor visas.

20. Participation in DNA testing: – prior to the hearing the review applicant advised the Tribunal that he had undertaken DNA testing in Australia, and the second and third named visa applicants were waiting for their appointment to complete DNA testing in India. The purpose of the testing was to establish that the review applicant was not the biological father of the second and third named visa applicants. There is a process that is followed in relation to providing DNA evidence from participants overseas for the purpose of meeting Tribunal and Department standards. The Tribunal wrote to the review applicant on 27 June 2022 and advised the visa applicants would be required to consent to participate in DNA testing which would be overseen by the overseas embassy. The Tribunal advised that the DNA collection cannot commence until each participating applicant who would be undertaking DNA testing supplies a passport photograph with their name on the back of the photograph to the nearest Australian embassy.

21. Subsequently the review applicant advised that the review applicant, and the second and third named visa applicants were not willing to participate in DNA testing. The Tribunal notes that DNA testing is not obligatory, and the review applicant and visa applicants can choose to participate or not to participate. However, it is of concern to the Tribunal that the review applicant and the visa applicants had commenced this process to participate in DNA testing and provide the Tribunal with a DNA report, and decided not to participate when the Tribunal advised the review applicant of the required scrutiny in relation to the identification of the participants in the DNA testing.

22. The review applicant and first named visa applicant told the Tribunal that they could not explain to the children why they would have to go through the DNA process. The Tribunal does not accept this explanation, as the DNA testing had originally been initiated by the review applicant, and the review applicant had advised the Tribunal that the visa applicants would be participating in the DNA testing.

23. The Tribunal has noted the explanations provided by the review applicant in relation to the home site visit in 2018 and the information provided to the Departmental offices from members of the village. The Tribunal has noted that the review applicant originally initiated DNA testing to establish he was not the biological father of the second and third named visa applicants, which would also overcome the information that had been obtained by the departmental offices at the home site visit, and negate any suggestion that the review applicant and first named visa applicant had provided false and misleading information or nongenuine documents or incorrect information in support of the applications for the visa. The Tribunal has noted that the review applicant decided not to proceed with the DNA testing. The Tribunal remains concerned that incorrect information may have been provided with this application for the visa, and the review applicant and first named visa applicant did not proceed with the opportunity, through DNA testing, to negate the suggestion that incorrect or false information had been provided.

24. Information provided in support of the application: – the Tribunal has assessed and read the Department file, and also confirmed with the review applicant and the representative in the hearing that the following information had been provided by review applicant and first name visa applicant in support of the applications for the visa. The review applicant confirmed that the information provided to the Department included the application form, the sponsorship form, the personal particulars Form 80, the passports for the three visa applicants and other identification documents, the marriage certificate dated 2016, the review applicant’s divorce document dated 2014, the first name visa applicant’s divorce decree, and the two adoption deeds for the second and third named visa applicants.

25. In response to the Department’s request for further information and evidence in support of the application for the visa, the review applicant confirmed the following information had been provided to the Department – Australian health cover obtained by the review applicant for the first name visa applicant dated 2017, two money grams in the amount of $200 sent from the review applicant to the first name visa applicant in 2018, an undated statement from both the review applicant and first name visa applicant, four statutory declarations dated either April or May 2018, the review applicant’s bank statements from 2017 and 2018, collection of photographs and a medical report confirming the first name visa applicant was pregnant in 2018.

26. In support of the application for review, the review applicant provided copies of documents previously submitted to the Department including the second and third named visa applicants’ adoption certificates and passports, the marriage certificate dated 2016, and provided the birth certificates for the second and third named visa applicants, a statutory declaration from the first named applicant’s sister [Ms A] dated 22 July 2022, an affidavit dated 27 March 2019 from a senior member of the visa applicants’  village, a psychological report in relation to the review applicant and the representative’s submission.

27. The Tribunal has considered that the written information provided to the Tribunal in support of the application for review that is contemporaneous to the decision, or is dated and current within the last year of the time of decision is very limited.

28. Evidence at the hearing: – the review applicant and first named visa applicant both stated they did not jointly own property or major assets together and did not have joint liabilities or debts. Both the review applicant and first named visa applicant stated that they had a joint bank account in India which was set up after their marriage in 2016. The review applicant and the first name visa applicant stated that the review applicant provided financial support to the visa applicants on a monthly basis or sometimes every second month in amounts of between $500 and $2000 transferred into the joint Indian bank account. The review applicant stated they had provided the Department with the two copies of the money transfers in February 2018, as evidence of his financial support. The review applicant stated that he sent the financial support by way of money transfer to the first name visa applicant before he established the application to transfer money through his bank account in Australia.

29. The Tribunal has not been provided with any copies of statements of the joint Indian bank account. The Tribunal has considered the copies of the review applicant’s bank statements provided to the Department, and the Tribunal discussed in the hearing with the review applicant that the bank statements provided do not record any transfers from the review applicant to the first name visa applicant or the Indian bank account. The Tribunal clarified with the review applicant that the transfers to particular names ([Ms B], [Mr C]) as recorded in his bank statements were not transfers to the first named visa applicant. The only documentary evidence of financial support of the review applicant to the first name visa applicant is the two money transfers in the amount of $200 each dated 3 February 2018 and 17 February 2018.

30. The review applicant and the first named visa applicant stated they had lived in the same household for five months after they married in 2016, for three months when the three visa applicants visited the review applicant in 2017, and for six months when the three visa applicants visited the review applicant in 2018. The review applicant stated he continued to work when the visa applicants visited him in 2017 and 2018. The review applicant and first name visa applicant stated that the first name visa applicant does not work in India and did not work during her visits to Australia. There is no documentary evidence provided to the Tribunal of the parties’ sharing day-to-day household expenses.

1. The review applicant and first name visa applicant reside in separate countries, and the Tribunal accepts the evidence of the first name visa applicant that she provides the care and support for the children (the second and third named visa applicants) when they live in India. The review applicant also stated that the first named visa applicant has the care and support of the children as they are living with her. The review applicant stated that when the visa applicants came to visit him in Australia, he spent time with the children, and they started liking him. The review applicant and first name visa applicant stated they share responsibility for the children in the sense that the review applicant provides financial support for the children. As noted above the parties have not provided any documentary evidence of the financial support it is claimed the review applicant provides to the first name visa applicant, excluding the two money transfer documents from February 2018.

2. I accept the first named visa applicant became pregnant in 2018 based on the medical report provided. I accept the evidence of the first name visa applicant that the pregnancy was miscarried.

3. The applicants provided the Department with four statutory declarations in support of the relationship. Three of those statutory declarations, that of the sister of the first name visa applicant, [Ms A], a work colleague of the review applicant, [Mr D], and a friend of the review applicant, [Mr E], all declared that they were aware that the first named visa applicant lived with the review applicant when she came to Australia on the visitor visa. The written and oral evidence of the review applicant and first named visa applicant was that the visa applicants lived and stayed with the review applicant when they visited Australia as the holder of visitor visas. The oral evidence and written evidence before the Tribunal was that the parties shared the house work, and the review applicant stated that he assisted the first name visa applicant with household duties when he got home from work.

4. The review applicant and visa applicant have provided the four statutory declarations dated April or May 2018 discussed above, and five affidavits of [Mr F], [Ms G], [Mr H], translated date 4 April 2019, and [Mr I] and [Ms J] (the mother of the review applicant) translated date 27 March 2019, as evidence that the parties represent themselves as married to each other. The affidavits provide information that the deponents attest that they know of the marriage between the review applicant and the first named visa applicant and the date of the marriage. Two of the statutory declarations provide more detailed information, including that the deponents believe the relationship to be a genuine and supportive relationship.

5. The review applicant and the first named visa applicant declared that their relationship had existed since 2016 and they married in October 2016. The parties declared that they resided together for five months after their marriage, (the first name visa applicant stated it was five or six months). The parties declared that they resided together in Australia for three months in 2017 and six months in 2018. The first name visa applicant stated they provided support and companionship to each other because they share most things from simple household issues to their plans to the future. The review applicant stated their relationship is good and they miss each other and have a good understanding.

6. The Tribunal heard oral evidence from the sister of the first named visa applicant, that she had been in Australia since 2006, and was aware the review applicant and her sister were married in 2016 because of what she was told and was not present at the wedding.

7. The date of birth of the second and third named visa applicants is in [month, year]. The evidence before the Tribunal is that the children do not know their real father, however no contact with their real father, and understand that the review applicant is their biological father. The evidence before the Tribunal is that the second and third named visa applicants first met the review applicant in 2016 but have been told he is their father.

8. In the hearing the Tribunal discussed that the review applicant was recorded on the second and third named visa applicants passports issued [in] 2017 as the father of the child. The review applicant provided the Tribunal with a copy of the passport of [the second applicant] issued [in] 2017 and recording the review applicant as the father. The review applicant’s representative submitted that the Indian government or passport authority had emailed the review applicant or the first named visa applicant requesting that the review applicant be recorded as the father of the child on the passport and that this email requests could be provided to the Tribunal. The Tribunal notes that the review applicant and first named visa applicant had provided the Department with documents confirming the second and third named visa applicants have been adopted by the review applicant in an order dated 8 December 2016.

9. The representative indicated she had access to the email from the government authority requesting the review applicant record himself as the father of the child on the passport and could provide a copy to the Tribunal immediately after the hearing. The Tribunal indicated it would allow 24-hours for the review applicant or his representative to provide a copy of the email and that it would be of assistance to the Tribunal. The review applicant and his representative did not provide to the Tribunal with a copy of an email indicating the review applicant or the first named visa applicant was requested to record the review applicant is the father of the child on the passport. The Tribunal did not receive a request for an extension of time in which to provide the email or any other information.

10. The Tribunal accepts that the review applicant had provided adoption deeds in relation to the second and third named applicants recording in 2016 he was the adoptive father of the children. The Tribunal accepts the passports issued in 2017 record the review applicant is the father of the second and third named visa applicants. The Tribunal gives no weight to the fact the review applicant did not provide the email from the Indian authorities purportedly a request for him to record his name as the father of the children in the passport application in 2017.

11. The Tribunal discussed with the review applicant, in the presence of the first named visa applicant near the conclusion of the hearing, that it needed to consider whether there was sufficient evidence that the review applicant and first name visa applicant were espouses within the meaning of s.5F(2) of the Act. The Tribunal had discussed s.5F(2) and the matter is the Tribunal had to consider under r.1.15A(3) with the review applicant at the commencement of the hearing.

12. The review applicant or his representative did not request time after the hearing to provide any other documents or information to the Tribunal. The Tribunal did not receive any further information from the review applicant after the hearing.

13. The Tribunal has noted and carefully considered the consistent evidence of the written statements and statutory declarations and oral evidence of the first named visa applicant, the review applicant and the first named visa applicant’s sister.

    SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

    Whether the parties are in a spouse or de facto relationship

14. 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 permanent resident.

15. ‘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?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal is satisfied, based on the assessment by the Department, that the marriage certificate provided with the application for the visa, confirming that the review applicant and first named visa applicant registered their marriage which was solemnised on 16 October 2016 is a genuine document. There was evidence provided to the Department during a home site visit in 2018 that the parties had in fact been married for ten years and were the parents of twin girls. Whether the review applicant and first named visa applicant were married first in 2016 or 2008, the Tribunal is satisfied that the marriage certificate provided with the visa application is a genuine document, and that the review applicant and visa applicant are married. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spouse relationship met?

17. In reaching the findings as to the evidence of the circumstances of the relationship, the Tribunal has concluded that the review applicant and first named visa applicant initially advised the Tribunal that they were participating in and arranging for DNA testing to establish the review applicant is not the biological father of the second and third named visa applicants.  After the Tribunal outlined the scrutiny of identification for the participants in the DNA testing, the review applicant advised that they did not intend to participate in the process. The Tribunal does not accept the explanation that the parties did not want to explain to the children why they were being required to undergo DNA testing in relation to the identity of their biological father. The Tribunal finds that the review applicant had initiated this process, and advised that the they were waiting on appointments for the second and third named visa applicants (the children).  It is not plausible that the process was discontinued because the review applicant and first named visa applicants did not wish to discuss or explain the process with the children, as according to the advice given to the Tribunal that process had already been put in place by them.

18. The Tribunal has also given weight to the Department’s home site visit report, which concluded that several people in the visa applicants’ village stated the review applicant and first named visa applicant had been married for 10 years (this was in 2018) and were the biological parents of twin girls. The report concluded that to be review applicant and first named visa applicant may be providing false or misleading information and/or bogus documents, and/or incorrect information.

19. The Tribunal has considered that alternative information was provided by the review applicant and first named visa applicant in the form of affidavits from other village members, attesting that the parties married in 2016.

20. The Tribunal is concerned that there is sufficient information before it to indicate that the evidence of the review applicant and first named visa applicant may not be reliable. The Tribunal therefore carefully assessed the documentary evidence provided in support of the claims made in the oral evidence and written statements by the review applicant and first named visa applicant in relation to the circumstances of the relationship.

21. The Tribunal has noted that the written and documentary evidence provided in this review is limited. The Tribunal discussed with the review applicant in the hearing that this was the reason for the refusal of the Department’s decision of the application for the visa dated 20 August 2019, and a relevant and important concern for the Tribunal in its assessment of the evidence.

22. Financial aspects of the relationship: – based on the written evidence provided and the oral evidence at the hearing, the Tribunal is satisfied that the parties do not have a joint ownership of real estate or any major assets, and the Tribunal is satisfied the parties do not have any joint liabilities together. The Tribunal has considered the claims by the review applicant and the first named visa applicant that they have a joint Indian bank account, and have pooled their resources in the sense the review applicant has been providing financial support to the first named visa applicant over a number of years. The Tribunal notes that the parties have not provided the Tribunal with copies of statements from the joint Indian bank account. The Tribunal notes that the review applicant’s bank statements, copies of which were provided to the Department and which were dated 2017 and 2018 did not disclose any money transfers from the review applicant to the first named visa applicant. The Tribunal accepts that the review applicant provided to money transfers both in the amount of $200 to the first named visa applicant in February 2018. The Tribunal is not satisfied based on the evidence before it that the parties have pooled their financial resources.

23. There is no evidence before the Tribunal that one party in the relationship owes any legal obligation in respect of the other. There is no documentary evidence before the Tribunal of the basis that the parties share the day-to-day household expenses. The Tribunal notes that the parties reside in different countries. The Tribunal accepts that when the visa applicants visited Australia the review applicant provided the financial support for the time of the visit, including household expenses.

24. The evidence of the financial aspects of the relationship is not sufficient to indicate the parties are in a spousal relationship.

25. Nature of the household: – the Tribunal is satisfied based on the evidence before it that the responsibility for the care and support of the children (the second and third named visa applicants) is the responsibility of the first named visa applicant as the children reside with her. The Tribunal is not satisfied based on the limited documentary evidence provided, that the review applicant provides financial support for the children.

26. The Tribunal is satisfied that the parties do not share a household and that they live in separate countries. The Tribunal is satisfied that the visa applicants have visited Australia and stayed with the review applicant during the time of their visit. The Tribunal accepts that the first named visa applicant and review applicant shared housework responsibility during the time of the visa applicants’ visits to Australia.

27. The Tribunal accepts that as the parties live in separate countries it is difficult to establish evidence of a shared household. The evidence of the nature of the household is limited, and is not sufficient to indicate the parties are in a spousal relationship.

28. Social aspects of the relationship: – the Tribunal is satisfied, based on the statutory declarations and affidavits provided, and the evidence of the first named visa applicant’s sister, that the parties have represented themselves as married to each other, to members of their family, residents of the applicant’s village in India, and friends and work colleagues. There is limited information provided to the Tribunal of the opinion of the persons’ friends and acquaintances about the nature of the relationship, but the Tribunal has considered the statutory declaration and oral evidence of the first named visa applicant’s sister, and the other statutory declaration that provided an opinion of the nature of the relationship as being genuine, and the reasons for that opinion. The Tribunal has considered the evidence before it in relation to the social activities of the parties which they undertook when they were together in both India and Australia, including visiting relatives, spending time with the children and having meals together.

29. There is limited evidence of the social aspects of the relationship, but this is the strongest evidence before the Tribunal of the relationship between the review applicant and the first named visa applicant. The Tribunal has carefully considered the information provided about the social aspects of the relationship.

30. The nature of the persons’ commitment to each other: – the issue of whether the review applicant and first named visa applicant had provided incorrect information about the duration of their relationship, and whether the review applicant was the biological father of the second and third named visa applicants, could have been easily addressed by a DNA paternity test. The review applicant advised the Tribunal, after originally initiating the DNA testing process, that he declined to consent to the second and third named visa applicants participating in the process. The Tribunal is unable to determine the correct duration of the relationship between the review applicant and the first named visa applicant. If any. The parties claim they were married in October 2016 and have spent a total of 14 months living together. They Tribunal is not satisfied based on the evidence provided that the parties have lived together as a couple for the period of time that they claim.

31. The Tribunal has considered the oral and written evidence of the parties in relation to the companionship and support they draw from each other and provide to each other and whether they see the relationship as long-term. The Tribunal accepts that the parties have provided a registered marriage certificate, and that the visa applicants have visited the review applicant in 2017 and 2018.

32. There is limited documentary or written evidence provided to the Tribunal in support of the review that indicates the parties provide support to each other or have ongoing communication with each other. There is limited documentary or written information provided to the Tribunal that indicates the parties see the relationship is long-term or have plans for the future.

33. The evidence of the nature of the persons’ commitment to each other is limited and is not sufficient to indicate the parties are in a spousal relationship.

34. The Tribunal has considered all the circumstances of the relationship, and considered the oral and written evidence before it in relation to the matters set out in r.1.15A(3).

35. The Tribunal notes that it carefully assessed the information before it, and was aware that there was a consideration by the Department that the review applicant and first named visa applicant may have provided false and misleading information, or nongenuine documents or incorrect information in relation to when their relationship first commenced. However the issue to be determined in this review is whether there is sufficient evidence for the Tribunal to be satisfied that the first named visa applicant and the review applicant are in a spousal relationship within the meaning of s.5F(2).

36. The Tribunal is not satisfied that there is sufficient evidence in relation to the circumstances of the relationship that has been provided that the first named visa applicant and the review applicant have a mutual commitment to a shared life to the exclusion of all others, or that they are in a genuine and continuing relationship.

1. On the basis of the above, the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made or at the time of this decision.

2. Therefore, the Tribunal is not satisfied, based on the evidence before it, that the first named visa applicant is the spouse of the sponsor, (the review applicant), and for this reason the Tribunal finds the first named visa applicant does not meet the requirements of cl.309.211(2).

3. As the parties claim to be married, the first named visa applicant does not intend to marry the review applicant, and the first named visa applicant does not meet the requirements of cl.309.211(3).

4. Accordingly, the Tribunal is not satisfied that the first named visa applicant meets the requirements of cl.309.211.

5. As the Tribunal is not satisfied that the first name visa applicant is the spouse of the sponsor (the review applicant) at the time of application or at the time of decision, the Tribunal finds that the first named visa applicant does not meet the requirements of cl.309.211 or cl.309.221.

   Secondary visa applicants

6. To meet the requirements of cl.309.321, the secondary visa applicants, namely the second named and third named visa applicants, are required to (a) continue to be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of the subclass 309 visa; or (b) to be a person to whom each of the following applies: (i) the person made a combined application with the person who satisfies the primary criteria; (ii) subsequent to the combined application being made, the person was found by the Minister not to be a member of the family unit of the person who satisfies the primary criteria; and (iii) subsequent to the person who satisfies the primary criteria being granted to subclass 309 visa and subclass 100 visa - the Tribunal found the person to be a member of the family unit of the person who satisfies the primary criteria.

7. The Tribunal is not satisfied that the first named visa applicant satisfies the primary criteria, and therefore the secondary visa applicants cannot meet the requirements of cl.309.321(a) or (b).

8. For these reasons the Tribunal finds that the second named visa applicant and the third named visa applicant do not meet the requirements of cl.309.321.

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

   decision

10. The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    Margie Bourke
    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).