Brar (Migration)

[2022] AATA 4336

Brar (Migration) [2022] AATA 4336 (5 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Raisa Brar

VISA APPLICANT:  Mr Manjeet Singh

REPRESENTATIVE:  Ms Shalini Vellapandian (MARN: 0743002)

CASE NUMBER:  1924590

DIBP REFERENCE(S):  BCC2018/3700593

MEMBER:Ann Duffield

DATE:5 September 2022

PLACE OF DECISION:  Canberra

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 05 September 2022 at 11:36am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – immigration history – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206

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 16 August 2019 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 applied for the visa on 11 June 2018 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 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 26 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

5. The review applicant was represented in relation to the review.

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

   background

7. The visa applicant is a citizen of India born on 11 November 1987. He first arrived in Australia on a student visa in July 2008. That appears to have ceased in December 2010 and he was unlawful until he was located by a compliance team in February 2015 when he departed.

8. The sponsor (DOB 24 November 1987) is an Australian citizen by grant on 18 November 2020. She arrived in Australia on a student visa in May 2006 and was subsequently granted a subclass 187 permanent visa. She has declared a previous marriage in May 2007 to Mr Ravinder Singh. Mr Singh departed Australia in November 2007 and the sponsor did not see him again. She sought him out in India to seek a divorce which was granted on 30 August 2016 (a copy of that order is at Folio 73 of the department’s file).

9. The parties claim to have met around 3 March 2012 at a restaurant in Bankstown and were married on 14 March 2017. The visa applicant was unlawful in Australia at that time. They began living together in Campsie in August 2013.

10. The sponsor travelled to India in 2013 to visit the applicant’s family and her mother, leaving the applicant in Australia since his unlawful status meant he was unable to travel at that time. The visa applicant eventually departed Australia in February 2015.

11. The sponsors movement records show that she departed Australia on the following occasions. During the hearing she provided additional information about those movements:

    a.Departed 6 January 2012 returned 10 March 2012

    b.Departed 28 January 2013 returned 18 February 2013

    c.Departed 31 October 2014 returned 8 January 2016. During this period the applicant was detained and removed from Australia for working unlawfully in February 2015. The sponsor had to return to India in October 2015 to lodge her permanent visa application. The Tribunal questioned why the applicant didn’t travel with her as the application process for her visa would quite likely take a long time. They claimed that they believed it would only take a few months however her first application was refused, and she was required to make a subsequent application which was accepted. In any case the applicant joined her in India and they lived together for almost a year, alternating between their respective parent’s houses before the sponsor returned to Australia.

    d.Departed 20 October 2016 returned 16 November 2016 – during this time they lived together both at her mother’s house and his parents for a few days at a time.

    e.Departed 9 March 2017 returned 29 March 2017 (Married 14 March 2017) –the parties travelled between parents houses and went on some sightseeing trips together.

    f.Departed16 October 2017 returned 14 November 2017 – during this period the sponsor visited the applicant again and celebrated Divali together. They again moved between their parents’ houses

    g.Departed 16 April 2018 returned 20 April 2018 (New Zealand) – The sponsor went to visit cousin for four days.

    h.Departed 4 November 2018 returned 6 December 2018 – The sponsor again visited the applicant and they celebrated Divali together. She also had an eye operation when she was there and travelled to Goa with the applicant and her mother.

    i.Departed 10 March 2019 returned 1 April 2019 – The sponsor made a surprise visit to the applicant and they stayed with her mother.

    j.Departed 15 August 2019 returned 28 August 2019 – The sponsor again visited the sponsor and attended the funeral of her brother-in-law. She had just purchased her apartment n Philip ACT and so the trip was very quick

    k.Departed 7 June 2022 returned 19 June 2022 – the sponsor visited the applicant again for two weeks as she had to return to begin a new work contract.

    Before the Tribunal

12. The Tribunal has a copy of the department’s file as well as the Tribunal’s file. The applicant through her representative provided a substantial submission in August 2022 prior to the scheduled hearing. That submission included a statutory declaration from the sponsor, copies of the parties passports, their marriage certificate, a copy of a lease for accommodation in Australia that they shared; letter from the Bank Manager confirming their Joint Bank account in India; copies of bank statements and a fixed deposit for the sponsor and applicant; a copy of their life insurance policies and superannuation documents; copies of Western Union transfers from the sponsor to the Applicant, a number of statutory declarations from friends and family, copies of the sponsor’s travel itinerary, photographs of the couple together and with others and several hundred pages of their chat and phone call histories.

    CONSIDERATION OF CLAIMS AND EVIDENCE Talk on the

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

    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 citizen. A copy of the sponsor’s passport is on the Tribunal’s file.

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. A copy of the parties Marriage Registration and Certificate is on the Tribunal’s file.  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. The Tribunal found the parties’ evidence at the hearing to be consistent, spontaneous, and compelling. The Tribunal had no difficulty accepting that the parties’ marriage is genuine and ongoing, and they do not live separately and apart on a permanent basis for the following reasons.

18. 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.

19. The parties gave consistent evidence about their financial position and how they have supported each other over the past almost ten years of being together. The applicant’s circumstances since his departure from Australia have been unfortunate as he has not acquired employment. He has spent his time assisting the sponsor’s mother as well as his own whilst the sponsor has provided as much financial support as she can. Both parties are currently contributing to a savings bond which will mature in a few years.

20. Both parties told the Tribunal that the applicant has a forklift licence and would work in that area, as well as being a driver for himself through a ride share platform. The applicant was unable to contribute to the purchase of the apartment but is aware of the deposit and mortgage amount. Both parties have stated that the applicant is committed to working together with the sponsor to pay off their mortgage and begin a family together.

21. The Tribunal is satisfied that the financial aspects of the parties’ relationship support a finding that they see their marriage as long term and have a mutual commitment to a shared life together.

22. 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.

23. The parties have lived together between 2013-2016 (a year of that period in India) and gave consistent evidence about their activities and living arrangements during that time. They have no children together, but the applicant is close to the sponsor’s mother and has spent considerable time assisting her. Between 2016-2022 the sponsor has travelled to India seven times to be with the applicant and celebrate Divali as well as attend family activities including the funeral of the applicant’s brother.

24. The Tribunal is satisfied that the nature of the parties’ household supports a finding that they are in a long term committed relationship and do not live separately and apart on a permanent basis.

25. 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.

26. The parties are known to each other’s families and the applicant spend a lot of time looking after the sponsor’s mother. They attend family events together when possible and celebrate religious holidays together. Photographs of them in social settings together and with each other have also been provided.

27. The Tribunal is satisfied that the social aspects of the parties’ relationship support a finding that they are in a genuine and continuing relationship to the exclusion of all others and that they see their marriage as long term.

28. The Tribunal has considered the nature of persons' commitment to each other – including the 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.

29. The parties met in March 2012 and began living together in early 2013 and were married in 2017.

30. Evidence before the Tribunal indicates that the sponsor’s first marriage was ill conceived and short-lived. She gave evidence that she entered the marriage in order to help her then husband but was completely unaware of the consequences, believing that the “marriage” was not a legal one. In the Tribunal’s mind this decision was reckless but not done with any mal intent to fraud, for example. The parties told the Tribunal that it was only when they tried to marry in 2013 that they discovered that the sponsor’s first marriage was valid and that she required a divorce, and they began the process of trying to find him to legally end the marriage. The Tribunal accepts the parties’ account of this episode.

31. At around this time the sponsor also fell pregnant and both parties decided to terminate the pregnancy because of all the uncertainty in their lives. They didn’t want to have a child together until there was more certainty in their lives. Both have told the Tribunal that they want to have children but will not do so until they find some stability in their circumstances.

32. Evidence before the Tribunal is that both parties draw emotional support from each other and over a period of some 10 years have become very close and developed a strong degree of companionship with each other. They have suffered through some difficult events and times but have a shared vision of a future together. The Tribunal is satisfied that the nature of the parties’ commitment to each other supports a finding that they view their marriage as long term and do not live separately and apart on a permanent basis.

    Any other circumstances of the relationship.

33. The Tribunal has considered the applicant’s immigration history and whether the applicant has entered into a marriage with the sponsor for the sole purpose of returning to Australia. The Tribunal put these matters directly to the parties and both accept that the decision not to approach the department about the applicant’s unlawful status was a mistake. Both stated that they wanted to be together and start a family and were uncertain of what would happen to them. The uncertainty of their migration status led them to make the decision to terminate an early pregnancy.

34. As it transpired the applicant was located by compliance and was returned to India. Despite this they have both given consistent and compelling evidence that the marriage has survived the separation and thrived. The tribunal is satisfied that the parties’ marriage was not contrived for migration purposes and that they both have a long-term commitment to a genuine and continuing marriage to the exclusion of all others.

35. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.

36. Therefore the visa applicant meets cl.309.211 and cl.309.221.

    CONCLUSION

37. 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 309 visa.

    decision

38. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    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).