Brar (Migration)

[2021] AATA 1121

Brar (Migration) [2021] AATA 1121 (24 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Kiranjit Kaur Brar

VISA APPLICANT:  Mr Harmandeep Singh Dhillon

CASE NUMBER:  1914134

DIBP REFERENCE(S):  BCC2017/4614999

MEMBER:Stephen Conwell

DATE:24 January 2021

PLACE OF DECISION:  Melbourne

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

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 24 January 2021 at 3:32pm

CATCHWORDS

MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – parties have a young child together – copy of Marriage Certificate provided – parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act– decision under review remitted

LEGISLATION

Migration Act 1958, ss 5CB, 5F, 65, 360, 375A
Migration Regulations 1994, rr 1.09,1.15, Schedule 2, cls 309.211, 309.221

CASES

Botha v Minister for Immigration and Border Protection [2017] FCA 362

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 20 May 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 5 December 2017 on the basis of his relationship with his review applicant and sponsor, Ms Kiranjit Kaur Brar (sponsor). 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 (applicant) did not satisfy cl.309.211 and cl.309.321 because they found the relationship between the applicant and sponsor does not meet the definition of spouse provided in section 5F of the Act, or of de facto provided in section 5CB of the Act, taking into account all the circumstances of the relationship, including the matters set out in sub regulation 1.09A.

4. The applicant was represented in relation to the review by his registered migration agent.

5. In reaching its decision the Tribunal was able to find in favour of the applicant on the basis of the material before it and pursuant to section 360(2)(a) of the Act, deemed it unnecessary to invite the applicant to appear at a hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether applicant and sponsor (the parties) are in a genuine and continuing spousal relationship such that the applicant satisfies the definition of ‘spouse’ under s.5F of the Act.

   Whether the parties are in a spouse or de facto relationship

8. 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 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.

9. ‘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 applicant’s and sponsor’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?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The evidence shows that the parties first married on 4th October 2003, only to divorce in 2008. After several years of separation (during which time the sponsor married again) the parties renewed their relationship and remarried in India. The evidence includes a Certificate of Marriage indicating that the parties remarried on 23rd May 2017. 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?

11. The Tribunal had before it documentary evidence contained in the Departmental and Tribunal files including the visa application and sponsorship documents, identity documents,  personal statements, marriage certificate, police clearance certificates, Form 888 statutory declarations and bank statements and identity documents from India. 

12. The Tribunal has had regard to all of the evidence before it in assessing the relationship between the parties.  In this decision record the Tribunal has not slavishly referred to each piece of the evidence submitted, preferring to adopt a thematic approach.  In this regard, the Tribunal has in mind the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [45]:

    [T]here is ample authority to support the proposition that, merely because the Tribunal did not specifically mention a fact or an issue, the Court should not necessarily infer that the Tribunal did not consider that fact or issue.

    Background

13. The sponsor’s evidence is the parties first met in July 2003 in India and married within three  months, on 4th Oct 2003. At that time, the sponsor  was a nursing student living in student accommodation, which was one of several challenges in their relationship. The increasing friction in the marriage led to a separation and the parties eventually divorced in 2008. Shortly thereafter the sponsor met and married another man, Mr Kulwinder Singh and they came to Australia on Student visas. That marriage also foundered in 2009 and the divorce from this second marriage was finalised in Australia on 15 August 2012.

14. During the breakdown of her second marriage the sponsor met someone else in Australia and the couple embarked upon de facto relationship from October 2009 to March 2015. However their respective families did not approve of the relationship which was the main reason for it ending.

15. The sponsor reconnected with the applicant in 2015 during a family visit to India. The applicant had not  remarried and he expressed the wish to give their relationship a second chance. In March 2017 the sponsor again visited India and the parties rekindled their relationship, deciding to get married again on 23 May 2017. The parties lived together at the applicant’s family home in India from March 2017 until September 2017 when the sponsor returned to Australia.

16. Movement records indicate that the sponsor departed Australia again on 27 April 2018 and remained overseas until her return on 22 October 2019. On 2 March 2020 the sponsor gave birth to a daughter in Australia.  The Tribunal accepts the evidence, including the child’s birth certificate, that the child is the biological child of the parties.

    Are the other requirements for a spousal relationship met?

    Financial aspects of the relationship

17. The Tribunal has regard to the evidence provided relating to the financial aspects of the relationship. Evidence was provided of the joint net worth of the applicant’s father, with the applicant and sponsor included, as on 23 September 2019. The Tribunal accords little weight this evidence as it is apparent that such assets belong to the applicant’s father, with the parties having no more than potential rights as beneficiaries in the normal course of familial succession.  There is evidence of a joint bank account in India in the name of the parties, as well as evidence of some money transactions from the applicant to the sponsor in Australia. However the Tribunal is not satisfied that the parties jointly own assets or share liabilities, but this is not unexpected since the applicant and sponsor live in separate countries and have not pooled financial resources, beyond having the joint bank account in India.  In the circumstances, the Tribunal accords this factor little weight.

    Nature of the household

18. The Tribunal has had regard to the evidence provided relating to the nature of the parties’ household including any joint responsibility for the care and support of children, the parties living arrangements and any sharing of housework.

19. The Tribunal acknowledges the parties do not live in the same country and therefore have not been able to set up a household. However the Tribunal accepts the evidence that since their remarrying in March 2017 the parties have lived together at the applicant’s family home during the sponsor’s extended visits to India in 2017 and again for over a year between 27 April 2018 to 22 October 2019. During this time, the sponsor fell pregnant with their first child and she gave birth in Melbourne in March 2020.

20. The Tribunal accepts that the sponsor living with the applicant’s family on her visits to India is culturally acceptable and indeed is usually expected of Indian brides. The Tribunal understands that during these visits the sponsor would be expected to assist her in-laws with the household chores while the applicant would work with his father on their farming duties. The Tribunal therefore accepts that the parties have lived together in the same house on such visits and have cared for each other and shared household duties in the context of the applicant’s extended family.

21. The Tribunal accepts the parties intend to live together in Australia with their child should the applicant be granted a visa.

    Social aspects of the relationship

22. The Tribunal gives weight to the photographs submitted as evidence that the parties present as a married couple in their families and to their social networks and community/religious gatherings. The sponsor has lived with the applicant and his family for extended periods of time, which is unlikely to be culturally acceptable unless the parties were seen as a married couple. There is evidence of texts between the parties which indicate a familiarity and affection one would expect from a genuine and committed relationship.

23. Notwithstanding the limited evidence before it, the Tribunal is satisfied that the social aspects of the relationship are consistent with a genuine and continuing spousal relationship.

    The nature of the parties’ commitment to each other

24. In respect of the nature of the commitment of the parties to the relationship, the Tribunal has considered a range of evidence submitted that was not before the delegate. Most notably, the parties had a child together – their daughter was born in Australia on 2 March 2020 and is an Australian citizen, as is the sponsor. It is submitted that the sponsor has no close relatives in Australia and the usual challenges of first-time motherhood that confront her have been exacerbated by the extraordinary challenges imposed by the COVID-9 pandemic.  For that reason the sponsor sought and was granted, an expedited hearing of her merits review by the Tribunal.

25. The Tribunal has given particular weight to the fact that the parties have a young child together who is an Australian citizen.

26. On the basis of the evidence before it the Tribunal is satisfied that the applicant and sponsor draw emotional support from each other and that this has been demonstrated  by their decision to remarry some nine years after they divorced from their first marriage. The Tribunal accepts that they see the relationship as a long-term one.

27. After considering all the circumstances of the relationship as set out in r.1.15A(3), the Tribunal  is satisfied that the visa applicant and review applicant are in a spousal relationship within the meaning of s.5F(2)(b)-(d) at the time of application and time of decision. The Tribunal is satisfied that the applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, that they were in a genuine and continuing relationship, and that they lived together, or not separately and apart, on a permanent basis at both the time of application and at the time of decision.

28. 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 that the time of this decision.

29. Therefore, the visa applicant meets the requirements of cl.309.211 and cl.309.221.

    Section 375A certificate

    For completeness, the Tribunal notes that it had information on the Department file said to be subject to the provisions of s.375A of the Act. The Department file (BCC2017/4614999) contains a certificate dated 21 June 2019 issued pursuant to s.375A of the Act.  The certificate indicates that folio 96 of the file contains information regarding Departmental assessment processes which are covert, sensitive and not a matter of public knowledge.

    The Tribunal has formed the view that the information was not relevant to its decision in this matter and as a consequence has placed no weight upon the material covered by the s.375A certificate.

    Conclusion

30. After reviewing all the evidence provided to the Tribunal it is satisfied that the relationship between the parties at the time of application is one where they have a mutual commitment to a shared life to the exclusion of all others, that it is genuine and continuing and they have lived both together, and not separately and apart, on a permanent basis.

31. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision, the parties were, and continue to be, in a spousal relationship.  Therefore the applicant meets cl.309.211 and cl.309.221.

32. Given the above findings the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a Subclass 309 visa.

    DECISION

33. 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

    Stephen Conwell
    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).