Cases (Migration)

[2022] AATA 3244

Cases (Migration) [2022] AATA 3244 (10 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Margie Cases

VISA APPLICANT:  Mr Mandip Singh

REPRESENTATIVE:  Mr Narinder Sahi (MARN: 0641530)

CASE NUMBER:  1802716

DIBP REFERENCE(S):  BCC2015/079778 BCC2015/1840514 OSF2015/079778 OSF2018/031876 OSF2018/031877 OSF2018/031879 OSF29018/031878

MEMBER:Peter Vlahos

DATE:10 August 2022

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

This Statement was made on 10^th  August 2022 at 9.51AM

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – applicant departed Australia for financial reasons – splitting of utilities bills – social approval of the relationship – evident communication and companionship – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221, 309.223; r 1.15

CASES

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 11 January 2018 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 25 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. Relevantly to this matter the primary criteria include cl. 309.211 and cl. 309.221. The delegate in this matter refused the application in relation to the primary criteria cl. 309.223.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl. 309.223 because the delegate had identified concerns that outweighed the evidence that supported the claimed spousal relationship with the sponsor, and the delegate was not satisfied the visa applicant was in a genuine, ongoing, and exclusive relationship with the sponsor.

4. The review applicant appeared before the Tribunal on 8 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mandip Singh, Marjurie Cases, and Mr Ramandeep Bansal.  

5. The review applicant was represented in relation to the review. The representative attended the Tribunal 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 the applicant continues to be the spouse of the sponsor who was the applicant’s spouse at the time of application.

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

   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 visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. Based on the review applicant’s Australian passport,[1] the Tribunal is satisfied that she is an Australian citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

   [1] see Certificate of Australian Citizenship dated 11 November 1997 see Folio [37] Department File; Sponsor’s Australian Passport no. N1563998, see Folio [36] in Department File

9. In the Department decision record dated 11 January 2018 the delegate concluded that the visa applicant did not meet the requirements of cl. 309.223. Subclause 309.223 states in the case of an applicant who meets the requirements of subclause 309.211(2), the applicant continues to be the spouse or de facto partner of the person referred to in paragraph 309.211(a), (b) or (c) who was the applicant’s spouse or de facto partner at the time of the application.

10. In this instance the review applicant is an Australian citizen and the applicant have submitted a registered marriage certificate with the application for the visa. Based on the conclusion of the delegate in the decision record, and the information available about the review applicant’s citizenship and marital status, the Tribunal concludes that the delegate found that the parties had met: clause 309. 211(2)(a) at the time of application, namely that the visa applicant was the spouse of an Australian citizen at the time of application. However, for clarity as there has not been any direct finding in relation to cl. 309.211, the Tribunal will therefore also consider whether the visa applicant meets the criteria at the time of application, as well as of the time of decision.  

11. The Tribunal noted from the outset of the hearing with the review applicant present that it was required to discuss whether the visa applicant met the requirements for a spouse relationship at the time of application and at the time of decision. In this instance, the Tribunal is required to make a finding in relation to whether the visa applicant meets the requirements of cl. 309.223, in that he continues to be the spouse of the review applicant who is the person referred to in cl. 309.211(2)(a) as the visa applicant’s spouse at the time of application. As referred to above, the Tribunal will make findings at the time of application as well as at the time of decision.

12. ‘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?

13. 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 that the parties married in Melbourne on 11 October 2014. The Tribunal is satisfied based on the registered marriage certificate, that the parties were validly married in Victoria on 11 October 2014. 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 spousal relationship met?

    Financial aspects of the relationship

14. The delegate noted that the sponsor and applicant provided the following evidence as proof of the financial aspects of the relationship:

    §Copy of the applicant’s personal bank statement with the State bank of India

    §Copy of statement of Commonwealth Bank account jointly held by both the applicant and his sponsor, dated from 28 September 2015 to 01 August 2016

    §Copy of a statement from the Commonwealth Bank in the applicant’s sponsor’s name.

15. The delegate noted that the Commonwealth Bank account statement recorded the deposit of limited funds. The account also recorded many online deposits from unknown sources but the balance in that account was consistently low. The delegate determined that the account did not demonstrate any activities which reflected that it was used mutually by the applicant and the sponsor for the daily expenses for maintain a joint household. The delegate also determined that though the applicant claimed being in a relationship with the sponsor for four years, he was not convinced that sufficient evidence had been provided showing substantial evidence of joint financial commitments for the period that was claimed the two were together.

16. At the hearing, these concerns were put to both the applicant and the sponsor. In response, the sponsor (wife) told the Tribunal that it was difficult to increase the couple’s funds during this particular time, because the applicant (her husband) was not permitted to work in order to contribute to the couple’s finances. The sponsor said, that during that time she was working only and was then paying for the cost of the mortgage of ‘her home’ while the applicant survived by being provided with ‘money from his friends.’

17. The sponsor confirmed that at the time – the couple’s joint account – had only managed to have accumulated in savings, the amount of $100 - $200. This was also confirmed by the applicant in his evidence before the Tribunal. In the discussion that followed, the Tribunal asked the sponsor – why were the various utility bills and other bills addressed to each party alone and not jointly. The sponsor explained to the Tribunal that she and the applicant – her now husband had agreed between themselves to so divide the ongoing costs associated with their living arrangement as a couple. This agreement between the two was confirmed later in the hearing (to be the case) when the Tribunal discussed this arrangement with the applicant (husband). The applicant also confirmed that at that time his wife/sponsor was the only one of the two working and was also making payments to the mortgage owed to the bank and it was only fair that he too make a contribution to the couple’s living expenses.

18. The sponsor told the Tribunal that the two were together for only ‘four months’ and then the applicant had to leave Australia and it was very difficult to accumulate funds. Moreover, what made this effort difficult was that the applicant was ‘not permitted to work’.

19. Both parties confirmed that the applicant made no contribution to the sponsor/wife’s mortgage. The mortgage was the sole responsibility of the sponsor.

20. Both parties told the told the Tribunal that the ultimate goal for the two was to save up money for the two to buy a house together. This is very difficult when one of them has been living overseas.

21. The sponsor told the Tribunal that she later sold her home and has been living with her daughter in rented accommodation.

22. According to the sponsor, the applicant is the owner of real estate in India. The sponsor described this real estate as a house within a complex of other homes. She also said that there were in existence other property interests which were a family concern. The applicant confirmed this in his evidence to the Tribunal. He confirmed the address of his residence as [Address 1 in] Kharar, Punjab which was also previously stated by the sponsor.

23. Both parties confirmed for the Tribunal when asked the question – where they both lived when the sponsor visited the applicant in India in Kharar.

    Obviously, the parties’ cohabitation as a married couple was for a brief period of time. Overall, they cohabitated together only for four months. It was a very brief period and unable to provide the accumulated funds to convince the delegate that the two parties had made a ‘financial commitment’ to each other. Nevertheless, having discussed the financial arrangements of the two parties while living together, the Tribunal was able to become convinced that though on paper the commitment – in financial terms – was not significant, the two parties did indicate to the Tribunal their thinking on their finances and how they tried to accommodate them to suit their cohabitation – even for the brief period of four months. The Tribunal was told that the sponsor was the only one employed and making monthly contributions to her mortgage. The applicant on his part, could not work because he was not permitted (due to his then visa status) but had agreed to make a commitment to the payment of some of the costs of the household even if it was via gaining moneys for that purpose from his friends – on credit. The financial commitment was in the opinion of the Tribunal present in the relationship at that time and the Tribunal is of the opinion it would have been further developed and with considerable substance if the applicant had work rights and had remained in Australia.

24. The committed intention was there in the relationship from its inception (after marriage). The parties had worked out between themselves a series of financial commitments (concerning the utilities costs) and this arrangement would have developed into a strong financial commitment of each to other if it continued and if the applicant remained in Australia.

25. The Tribunal concludes and finds that there was a financial commitment to each other in the relationship.

    The nature of the household

26. The parties provided the following evidence to the delegate:

    §A copy of the Optus Tax invoice for TV/Internet in the applicant’s name with the issue dates being 1 May 2015 to 31 May 2015, 1 April 2015 to 30 April 2015, 1 November 2013 to 30 November 2013 and 1 November 2014 to 30 November 2014.

    §Copy of Telstra bill in the sponsor’s name for the month of August 2014

    §Copy of AGL electricity bills in the applicant’s name for the month of September to December 2014.

    §A copy of the electricity bill for the month of September 2015 in the applicant’s name

    §Copy of grocery bills issued from Easyday on 21 December 2015 without name of the buyer

27. The Tribunal noted that the delegate considered that the various types of utility bills which were submitted were in the names of either the applicant or sponsor individually, not in their joint names. The delegate was of the opinion that this did not demonstrate that the parties had maintained a household and had lived as a couple at their stated address, it only showed that they both resided there. The delegate was not satisfied that these documents substantiated that they maintained a joint household.

28. The applicant and the sponsor were asked to explain the delegate’s concerns. The applicant told the Tribunal that he cohabitated with the sponsor for two years before his departure from Australia. He explained that it was difficult for him to provide substantial evidence of his contribution to the household because at that time he was not allowed to work because of his visa and was provided some money from what he borrowed from his friends. If, he was able to work, he would have provided and contributed more substantially to the household, the applicant told the Tribunal. The sponsor for her part confirmed the applicant’s explanation save to say, that she (at that time) had responsibility for the mortgage and was the only one that was employed. More to the point, the sponsor told the Tribunal that certain utilities bills, and other household expenses were divided as to have the applicant’s name on some and on others – the sponsor because her husband, wanted to also contribute some money to the household expenses and did so from the money he had borrowed from his friends. The parties told the Tribunal in their evidence, that the splitting of the utilities bills was an “arrangement” the two agreed to in the circumstances they had found themselves in – one working, the other not permitted to do so but wanted by some means to ‘contribute’ to the household.

29. When the sponsor visited the applicant in India, the parties spoke of a different situation with regards to their household arrangements. The parties told the Tribunal that the applicant ‘owns two houses’ – one situated at [Address 2 in] Mohali, Punjab, India and the second, situated at [Address 1 in] Kharar, Punjab, India. The second residence, the applicant told the Tribunal that was ‘owned’ by the applicant for the last 13 years.[2] Both parties told the Tribunal that they ‘have resided at the second house’ and only visited the other house (which was the subject of a visit by the department). It was explained to the Tribunal that the parties’ reasons for residing in the second house was that it was situated on the ground floor, the applicant’s parents living on the top floor (of the residence bloc). The other residence was not couple’s choice of residence because it had ‘problems with access to water’ and second house had ground access and a outside area which provided for privacy for the couple.

    [2] see, evidence pf proprietary rights (of Applicant) provided by the applicant to the Tribunal, see Tribunal File.

30. The Tribunal noted that the applicant and his sponsor resided together for 3 months -from October 2015 to 28 December 2015 in India at the second house and from 20 February 2016 to 15 March 2016. Various documents were provided to the Tribunal to indicate the parties’ cohabitation (dental appointments for sponsor and receipts for goods).

31. Also, the Tribunal noted that the department conducted a visit on the other residence. It was noted that in the applicant’s Form 80 submitted that was the address that was indicated. Subsequently, during the departmental visit to the first address, the applicant and his family members were not available, and the neighbours were not in a position to identify the sponsor from photographs provided. However, the neighbours were able to confirm that the applicant resided at the address with his parents, elder brother, and his wife. The applicant explained that he had resided at the first house, but it was not suitable now that he had married. The first house was crowded: there lived his parents and his brother and wife and had issues (water access). The applicant and sponsor said they took residence in the second house because of their need for privacy and to have more leisure time to enjoy each other – this was not possible in the first house. The Tribunal accepts this explanation of the circumstances surrounding the current status of the household. The Tribunal also accepts that since the applicant left Australia (in 2015) they have been residing in different countries, and this proves a difficulty in demonstrating evidence of cohabitation, but the parties have lived for a considerable time when they were together in India in 2015 and their cohabitation was known to their families in India and in the Philippines (when the two visited the sponsor’s relatives there).

32. Moreover, the applicant told the Tribunal in his evidence that it was his/their intention to “sell his property in India” to provide a “down payment” towards the purchase of a home in Australia. The sponsor on her part told the Tribunal that if it was not for the Covid-19 Pandemic she would have returned to her husband in India again and stayed with him for a considerable period of time but that had not been possible for nearly three years and this has been difficult for her in particular. Nevertheless, the sponsor said that the couple’s plan was to work and accumulate enough funds to buy a house together and to establish a proper household. The Tribunal has listened to the parties and concludes and finds that despite the distance between the two, and what had intervened in their lives since their first meeting in August 2013 (and what followed), the two have remained committed or show a commitment to establishing a joint household.

1. The Tribunal having listened to both parties’ explanations and reasons concerning the issue of their commitment to a joint household gives weight to those comments as representing the truth of the situation that exists between the two and therefore shows a committed to establishing a joint household.

   The social aspects of the relationship  

2. The parties provided the following evidence to the delegate in support of the social aspects of their relationship:

   §Written statement of the applicant outlining their relationship

   §A statutory declaration (Form 888) from the applicant’s friend, Ramandeep Bansal, (including a certified copy of his passport)

   §A statutory declaration (Form 888) from the sponsor’s daughter, Marjorie Cases, along with her (copy) Australian Passport and driver’s license.

   §Copy of the applicant’s marriage certificate with the sponsor in Australia

   §Pictures of the parties in India

   §Pictures of the parties in Australia, including their wedding

   §A copy of an affidavit in the Punjabi language and English translation with a photograph of the applicant’s photograph and female photograph on it stating that the applicant is the owner of a property located in Kharar.

   §A copy of an electricity bill for the month of September 2015 in the applicant’s name from Punjab power

   §Copy of grocery bills issued from Easyday on 21 December 2015

3. The Tribunal noted that though the delegate acknowledged the provided marriage certificate and photographs of the applicant and sponsor together in Australia and India, the delegate gave this evidence less weight than the departmental site visit.

4. According to the delegate, the departmental visit suggested that social recognition was extremely limited. The delegate noted that neighbours had no knowledge of the relationship when questioned by the department officers and could not recognise the sponsor’s photograph. The delegate made the point that this was situation despite the applicant’s claims that he had lived together with family members in India. The delegate noted that it would be expected that the neighbours would be aware of the sponsor residing with the applicant during their time in India, given that the sponsor was a visiting spouse from Australia and would stand out in the community.

5. The Tribunal also noted the delegate’s opinion that the ‘photographs of the sponsor dancing with community members during a Jaggo function’ that this evidence ‘satisfied the delegate’ of the fact that ‘the sponsor had been to India.” The delegate was not satisfied that the spouse had been introduced as the applicant’s spouse or that the two had been accepted socially as a couple in the applicant’s community in India. Concern was raised by the delegate of the fact that the applicant had ‘returned to India in 2015’ and yet the neighbours had ‘no knowledge of his marriage in the eighteen (18) months between his return and the department’s visit.’

6. The applicant explained to the Tribunal that the lack of awareness of his marriage was due to the applicant living in Kharar and not with his parents. The applicant said that the other residence where his parents lived was crowded because there too lived his brother and his wife, and that was difficult to live there with his wife. The applicant and the sponsor in their evidence to the Tribunal said that for the time the two were together in India in 2015, the two lived at the applicant’s home in Kharar. Hence, that is why the neighbours did not know about his marriage and wife.

7. Further evidence was provided that the two preferred living in the second house because the first residence was a three-storey building. The ground floor is occupied by the applicant’s parents and his brother’s family is living on the first floor. Though, the second floor was vacant (at the residence, the department official visited) it could not be occupied because it had problems with the access to a water supply. Also, the sponsor experienced difficulties climbing to second floor, whereas the house in Kharar was situated on the ground floor. Finally, the house in Kharar had a garden attached to it and provided the couple with the amenity of going outdoors and privacy.

8. Also, while in India, the sponsor and applicant spoke of and proceeded to hold a ‘Jaggo’ (a pre-Marriage ceremony) which was held in the front yard of the house in Kharar. The parties said that the ceremony was attended by the applicant, sponsor, family members, friends, relatives and near neighbours. The Tribunal was told that all the neighbours knew about the relationship. The Tribunal noted the evidence provided (and on the AAT File) of photographs & videos of the Jaggo ceremony. Moreover, the applicant and sponsor told the Tribunal that they (while the sponsor was in India) celebrated their marriage anniversary at the applicant’s home in Kharar.[3] The applicant also said that he resided at the second house and visited the other house few times and therefore, the neighbours at the first house did not notice him or that he was in a relationship. The sponsor confirmed the applicant’s comments in her evidence also. She told the Tribunal that in the time she was in India she only resided at the house in Kharar. She also said that it was at Kharar house that she met the neighbours and family, and friends. The sponsor went on to say, that she also preferred her relationship enjoy some privacy. The applicant told the Tribunal that he ‘did not feel the need to intimate with the neighbours at the first house.’ The applicant said that it had ‘naturally happened’ and ‘the neighbours at the second house’ knew ‘about the relationship’ with the sponsor – his wife.[4]

   [3] The applicant has provided the details of his neighbours – Harchand Singh – address: [specified in] Kharar, Punjab, India contact 9463359803 and Ravinder Singh [specified in] Kharar, Punjab, India, contact: 9915824018.

   [4] see, Applicant’s written submission dated 2 August 2022.  

9. The parties went on to tell the Tribunal that they were married while the applicant was in Australia – commenced their married life in Australia and ‘continued their married life’ at the applicant’s home (in Kharar). It was to be expected that if the parties had not resided in the first home, the neighbours would not have observed the sponsor or would have no knowledge of the sponsor’s relationship with applicant. Whereas it was submitted that after having lived in the house at Kharar, statements were provided by family and friends – having witnessed both parties living together. The Tribunal has considered the evidence provided by the applicant and the sponsor concerning the issue of residence while both were together in India. It seems to the Tribunal that if the delegate took a different view of the circumstances, both parties should carry the blame. There is an obligation on all involved in an application of this kind to inform the Department of any change in the circumstances. It would seem that the parties had not informed the Department of their movements or where they actually resided. That is a responsibility that never can be underestimated or ignored. Having reviewed the photos, statements and considered the evidence (oral) provided to the Tribunal – discussing these issues – the Tribunal accepts the explanation provided by the parties. The Tribunal accepts that the applicant did not want to be intimate with the neighbours at the first residence. The applicant said that he lived primarily at the second residence (in Kharar) which he considered his main residence and where he lived with the sponsor when she visited India and it was there, they chose to socialise with family, friends and neighbours.  

10. Furthermore, it was submitted that sponsor had indeed travelled to India to be with the applicant and his family members. It was also submitted that the sponsor participated in the Jaggo celebration as a ‘member of the family.’ It was said that this celebration was of great significance to the applicant and his religion and was also a social get together of all family and relatives. The sponsor told the Tribunal (and the Tribunal accepts the evidence) that she took part in the celebrations as member of the applicant’s family. The Tribunal noted the submitted evidence – photographs and video clips which recorded the applicant ‘dancing with the applicant’s family members.’ Moreover, the evidence makes it clear to the Tribunal that the applicant’s relationship with the sponsor was openly displayed and made known to the applicant’s family members, friends, and relatives who in turn have recognised the relationship between the applicant and the sponsor.

11. The Tribunal accepts the evidence provided that during the telephone interview conducted by the Department, the applicant’s father acknowledged that his son (the applicant) was married to the sponsor. The Tribunal further accepts the explanation provided in the written submissions that misunderstandings may have surfaced when the applicant’s father was interviewed over the telephone by the Department’s officers. The Tribunal noted the submitted wedding photographs, travel documents of the sponsor to India in order to meet the applicant’s family and the various written statements attesting to the genuineness of the relationship in this instance.

12. The applicant and his sponsor have provided credible evidence that family, relatives, and friends know that they are married and are supportive of their marriage. The Tribunal gives weight to the evidence of family and friends who supported and approved of the relationship and the couple’s marriage.

13. The Tribunal finds that there is social recognition of the marriage and gives weight to this aspect of the application.

    Nature of a person’s commitment to each other

14. The couple have known each other since their first meeting at a social gathering at the Croxton Park public bar in August 2013. They exchanged contact details and thereafter their relationship developed. The two decided to marry on 11 October 2014. The Tribunal accepts the applicant’s account (and the sponsor’s) of how the relationship began and that the parties lived together albeit briefly after they married – the applicant leaving for India in 2015. In that period the two have exchanged numerous telephone calls and did connect in India where they committed to each other before family and friends and the two also travelled (as a couple) to the Philippines to meet the sponsor’s family.

15. The Tribunal raised the issue of the age difference between the couple. The applicant, finding it difficult to control his emotions, told the Tribunal that he had only one wish to come to Australia and to be with his wife who he cherished and loved. The feelings were reciprocated on the part of the sponsor. The applicant did not concern himself about the prospect of not having children. What mattered to the applicant was to establish a household with his wife here in Australia.

16. The Tribunal finds that if the applicant was to arrive in Australia, he would take up his place as the sponsor’s husband, living and residing together and contributing to the daily needs of their joint household.

17. Having heard and considered the oral evidence of the parties as provided to the Tribunal, having also considered the plethora of evidence submitted by both parties, the Tribunal’s conclusion is that (despite, the great distance between the two parties) there is close communication and companionship is evident in what they have both done when together in India (albeit briefly) and the goals such as caring for one another and providing assistance to each when required.

18. There is an awareness of each other’s issues on a daily basis evidenced by their calls to each other.

19. The couple support each other in their daily life. Their family and friends support them in their married life.

20. The Tribunal finds there is evidence of a long-term commitment to a spousal relationship.

21. 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 time of this decision.

22. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

    Certificate issued by the Department pursuant to 375A and s. 376 of the Act

23. The Tribunal noted that the s. 376 certificate is dated 9 February 2018 and a s. 375A certificate and had been initially brought to the attention of the applicant and her migration agent for comment. The Tribunal provided the applicant through his representative with copies of these certificates and requested that if he or his spouse had any comments, they should be provided to the Tribunal to consider.

24. The s. 375A certificate was validly issued by the Minister’s delegate and related to document folios in part [935, 937, and 938] in department file no. BCC2015/1840514 and referred to the Department’s Statistical Analysis.

25. The s.376 certificate was also validly issued by the Minister’s delegate and related to the departmental site visit conducted in India.

26. The Tribunal, having considered the applicant’s responses at the hearing and those of the spouse and their migration agent’s written submission dated 20 March 2022[5], concludes and finds that though the certificates were properly issued by the Department, it provides no significant new concerns which might alter the Tribunal ‘s opinion and conclusions arrived at having considered the evidence in toto at the hearing of this matter. However, if the applicant had accumulated any debts that were owing and remain unpaid to the Commonwealth (due to previous matters having been settled) it is considered proper by the Tribunal that those debts be settled first.  

    [5] see AAT File Case no. 1802716 submission,

27. 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

28. 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.309.221of Schedule 2 to the Regulations

    Peter Vlahos
    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).