Bassi (Migration)

[2020] AATA 311

Bassi (Migration) [2020] AATA 311 (5 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Sue-Ellen Rose Bassi

VISA APPLICANT:  Mr Dilbar Bassi

CASE NUMBER:  1729826

DIBP REFERENCE(S):  BCC2015/1716211

MEMBER:Ann Duffield

DATE:5 February 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 05 February 2020 at 1:05pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – genuine spousal relationship – period of separation – withdrew sponsorship – reconciled – purchased a nomination – illegal employment scam – loan from uncle – no evidence of joint assets/liabilities – not satisfied relationship is genuine – conflicting evidence – decision under review affirmed  

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), Schedule 2 309.211, 309.223, r 1.15A(3)

CASES

He v MIBP [2017] FCAFC 206

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 26 September 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant (the applicant) applied for the visa on 16 June 2015 on the basis of his relationship with his 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 visa applicant did not satisfy cl.309.211 and 309.223 because the delegate was not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act.

4. The review applicant appeared before the Tribunal on 8 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant.

5. The review applicant was represented in relation to the review by her registered migration agent.

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

   BACKGROUND

7. The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

8. The visa applicant is a citizen of India born on 17 January 1976 (43 years old). He first came to Australia in January 2008 on a temporary work visa and after several applications for other visas, including a partner visa in August 2012, all of which were refused, the applicant departed Australia on 28 May 2015.

9. The sponsor, the applicant, is a citizen of Australia born on 28 December 1953 (66 years old). She has departed and returned to Australia several times since the applicant’s departure including in November 2015; October 2017 and April 2018 returning two weeks later on 16 April 2018. She was paid a disability pension at the single rate since July 2011 as the applicant is not an Australian resident and they do not pool financial resources. It appears she has transferred to the Aged Pension since June 2019. In May 2018 she received a $10,000 bequest at the death of a relative.

10. The sponsor and the applicant claimed to have met in December 2010 and were married on 1 June 2011. In October 2011 the sponsor withdrew her sponsorship for the application however that was rescinded by her on 2 November 2011 when the sponsor advised that they had reconciled.

11. The parties provided the delegate with a number of documents to support their claims including bank statements, call logs, statements and statutory declarations from friends and family and photographs. However the delegate was not satisfied that those documents supported their claim to be in a genuine, continuing and exclusive spousal relationship envisaged by the Migration Act.

12. The sponsor and the applicant also provided the Tribunal with a number of statements and documents supporting their claims. The Tribunal has carefully considered this information and where relevant it is included in the discussion of reasons and findings below.

13. The sponsor sent the Tribunal a handwritten statement claiming that she and the applicant have lived together for many years and she has been supporting him on her pension as he has been denied work rights. She claimed that when the Department conducted a site visit of his family home in December 2016 they asked very confusing questions which resulted in the delegate forming a view that the parties were not married as they claimed.

14. The sponsor claims that whilst she has visited India several times she could not live there and became ill on several occasions whilst she was there. She claims that they have had a joint bank account in India since 2015. She claims that the applicant is only earning a very small amount of money and is largely supported by his mother who also looks after her other son, his wife and their two children.

15. The sponsor claims that she and the applicant have many friends and a great life in Australia and she is very stressed without him. She has a job for 6 hours a week and volunteers at the temple. They are both very religious. The sponsor claims that she and the applicant speak twice every day and face time every day. She talks to his family regularly. The sponsor visited India again after the Tribunal hearing, from 2-15 December 2019, and provided some photographs of her together with the applicant and others over that period.

16. The applicant also provided an affidavit stating that they are in a genuine marriage.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Migration Act.

    Whether the parties are in a spouse or de facto relationship

18. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

19. ‘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?

20. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. 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?

21. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

22. The parties do not have any joint ownership of assets or liabilities. The extent to which they pool their financial resources is limited since the sponsor is on an Age Pension and the applicant appears to earn barely a subsistence living. The sponsor claims to have supported herself and the applicant for the time they lived together in Australia.

23. The applicant appears to have taken out a loan of some $20,000 from an Uncle in Canada to pay an employer who was at the time sponsoring his subclass 457 visa. The Tribunal put to the applicant that it appeared as if he were paying the employer to sponsor him and thus had the hallmarks of being a bogus employee/employer arrangement for the purposes of obtaining a Migration outcome. The applicant denied this claiming he did not know the rules in Australia and when his employer asked for the money he believed that he had to give it to him. The Tribunal read to the applicant part of a differently constituted Tribunal’s decision affirming the cancellation of his 457 visa wherein his employer at the time wrote to the Department informing them that he had not reported for work for three months and when he did finally appear at work he was frequently absent or sick. His employer then reported that he had gone to Melbourne and withdrew their sponsorship.

24. The applicant responded to this information at the hearing and in a written submission asserting that the employer was lying and that he was the victim as he was not being paid. In fact a statement purportedly from the applicant’s uncle in Canada states that it was the applicant’s employer who sought the loan from him directly. The Tribunal put to the applicant that it appeared he would do whatever was required to remain in Australia including voluntarily participating in an illegal employment scam. The applicant denied he did anything wrong.

25. The sponsor was under the impression that the applicant had sought a loan from his uncle (which variously ranged from $10,000 to $70,000) but that it did not have to be repaid because “Indian people did everything for each other”. The fact that the parties could not agree on or inform the Tribunal of the amount and nature of this “loan” with any certainty leads it to form view that this is not a matter they discussed in detail. This is a significant debt and given that the applicant has subsistence income and the sponsor is on a pension the Tribunal has every expectation that such a matter would be the matter of detailed discussion. The fact that it does not appear to have been discussed indicates that the parties are not financially interdependent nor do they pool their resources.

26. The evidence before the Tribunal is that the sponsor has financially supported the applicant for the duration of their co-habitation and has even sent him money whilst he has been in India to assist him in the establishment of a small business. She pays her own way when she travels. She lives in a three bedroom townhouse on her own and the applicant is on the lease. She claims that he is registered as a second driver on her vehicle with the insurance company.  She pays $335 a week rent and receives a pension of $1063 plus $280 a fortnight for her part time job.

27. The Tribunal is not satisfied that the financial aspect of the parties’ relationship supports a finding that they have a mutual commitment to a shared life together.

28. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

29. The sponsor and the applicant claimed to have met in December 2010 and were married on 1 June 2011. In October 2011 the sponsor withdrew her sponsorship for the application as she claimed the applicant had left the marital home. However she rescinded her withdrawal on 2 November 2011 when the sponsor advised that they had reconciled.

30. The parties live separately and apart but shared accommodation for several years between around November 2011 and the applicant’s departure in May 2015. The parties had a period of separation from sometime between October and November 2011. When questioned about the reasons for this separation, the parties gave conflicting evidence. The applicant told the Tribunal at the hearing that he had been away in Cairns for about one month. The sponsor claimed he was gone for about four or five days. The explanation for his departure was given as being the result of a dispute with the sponsor’s room- mate. Upon his departure the sponsor immediately contacted the Department to withdraw her sponsorship. Given that the sponsor had told the Tribunal that he had only been gone for four days this does not seem like the action of someone who had a long term commitment to a shared life with the applicant. The Tribunal put to the sponsor that her swift action in withdrawing her sponsorship did not point to a strong commitment to the applicant. Asked if she had contacted him or spoken to him prior to her withdrawal she said she had not.

31. In all the parties’ explanation of this event seems contrived and does not give the Tribunal confidence that their evidence is truthful in all respects.

32. Be that as it may, the sponsor has visited India on four separate occasions since the applicant departed with the most recent visit being for 13 days in December 2019. She has provided photographs of these visits and statements from relatives and friends in India attesting to her relationship with the applicant. The Tribunal asked the sponsor if she would consider living in India if the application failed and she said that she would not. She said that every time she went to India she fell ill and at times had to be hospitalised. This may explain the brevity of her visit in December 2019 however the Tribunal would expect that after such a long time apart, and given the expense of the journey would be in the airfare (as accommodation would be free), that she could have stayed much longer.

33. The sponsor’s sister and son gave evidence at the Tribunal that they had visited the couple when they were living together and formed a view that they lived in a genuine marriage and shared the tasks of living together in a shared household. The Tribunal gives this evidence some weight. There are also written statements from a number of family members of both the applicant and the sponsor similarly attesting to those observations. Again the Tribunal gives this evidence some weight.

34. However, when considered in the totality of the parties’ evidence the Tribunal has formed a view that it whilst that evidence is given in good faith it is based on limited observation. Equally it is in the applicant’s interest to give the impression of being in a married relationship with the sponsor so that he can obtain permanent residency.

35. The Tribunal has weighed up these matters carefully and is not satisfied that cumulatively they support a finding that the parties are in a genuine and ongoing spousal relationship or that they do not live separately and apart on a permanent basis.

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

37. The parties have provided numerous photographs and statements by friends and relatives supporting their relationship. The sponsor has travelled to India on a number of occasions and they have given evidence that they attended social events together as a married couple in Australia. The Tribunal gives this aspect of their evidence some weight and the Tribunal is satisfied that the parties shared accommodation together.

38. The Tribunal has considered the nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

39. At the time of their marriage the applicant was 35 years old and the sponsor was 57 years old. The Tribunal put to the parties that the age, language and cultural differences were substantial barriers to overcome in order to have a successful marriage. The parties claimed that these matters had no bearing on their love and commitment to each other.

40. The Tribunal has formed a different view. The parties met when the applicant was going through the process of having his subclass 457 visa cancelled and reviewed by a differently constituted Tribunal. He did not discuss this matter with the sponsor at the time and she was unaware of the details of his circumstances. He did not mention that he was in a relationship with the sponsor to the previous Tribunal. It seems to the Tribunal that this was a significant event in his life and had the potential to significantly impact upon his life with the sponsor if his visa cancellation was affirmed (it was).

41. The circumstances of this cancellation were put to the applicant by the Tribunal and indicate that he had contrived to purchase a nomination. He denied claims by his employer that he had failed to turn up for work and instead counterclaimed that he had not been paid.

42. The Tribunal notes that the sponsor’s family appear to have a genuine belief that the sponsor’s marriage to the applicant was entered into with a sincere intention. However, a number of matters throw that belief into question in the Tribunal’s mind. The first is that the applicant left the marriage only around three months into it on the basis of an implausible account relating to the sponsor’s male roommate. The sponsor did not attempt to call him to discover the reasons for his departure but instead withdrew her sponsorship of the applicant.

43. These are not, in the Tribunal’s mind, the actions of a couple who have formed a mutual commitment to live together as man and wife for the long term. The Tribunal notes that they have claimed to live together as spouses between that time (November 2011) and the applicant’s departure in May 2015 – a period of some 3 and a half years. However they have lived separately and apart since that time. In the Tribunal’s mind despite their frequent phone calls and visits by the sponsor, they have not demonstrated the level of practical or intimate knowledge of each other that could reasonably be expected of a couple who claim to have a mutual commitment to a shared life together.

44. The Tribunal questioned the parties about the inception of their relationship and in particular their marriage proposal. Both gave entirely different accounts with the sponsor saying that they went for an aimless drive around Brisbane in the car before she asked him to marry her and the applicant telling the Tribunal that they were at a pub and he asked her to marry him.

45. In the Tribunal’s mind all of these matters cumulatively lend weight to a view that the applicant has and will continue to do whatever he must in order to obtain a visa to remain in Australia.

46. Having considered all aspects of the relationship individually and cumulatively, the Tribunal is not satisfied that the parties have a mutual commitment to a shared life together to the exclusion of all others. The Tribunal is not satisfied that their relationship is genuine and continuing and the Tribunal is not satisfied that they do not live separately and apart on a permanent basis.

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

48. Therefore the visa applicant does not meet cl.309.211 or  cl.309.221.

    CONCLUSION

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

    DECISION

50. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Ann Duffield
    Senior Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).