De Souza (Migration)

[2023] AATA 4618

De Souza (Migration) [2023] AATA 4618 (13 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Andrew Hyacinth De Souza

VISA APPLICANTS:  Mrs Mamatha Krishnappa

Miss Varsha Suresh

Miss Yuktha Suresh

REPRESENTATIVE:  Mr Oszkar Denes (MARN: 1789637)

CASE NUMBER:  1904353

DIBP REFERENCE:  BCC2016/4350773

MEMBER:Glynis Bartley

DATE:13 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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 13 December 2023 at 9:10am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – parties validly married –  review applicant financially supports the visa applicant – parties have now been married for more than 12 years – parties intend to establish a joint household in the review applicant’s home in Sydney – parties are in a genuine spousal relationship – parties are committed to one another –  decision under review remitted     

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

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in this case is whether the first named visa applicant, Mrs Mamatha Krishnappa, is the spouse of the review applicant, Mr Andrew De Souza.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 December 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).

3. The first named visa applicant (the visa applicant) applied for the visa on 23 December 2016 on the basis of her relationship with her 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.

4. On 31 December 2018, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) because the delegate was not satisfied that the visa applicant was the spouse, as defined in s 5F of the Act, of the review applicant. The delegate accepted that the visa applicant and her sponsor (the parties) had a joint bank account but said limited evidence had been provided about how they had managed their finances. She found the evidence regarding the nature of the household was minimal and unconvincing. The delegate was not satisfied that the parties represented themselves to others as being married, or that the nature of the commitment to each other was strong.

5. The review applicant applied for review of the decision to the Tribunal on 25 February 2019.

6. The review applicant appeared before the Tribunal on 8 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence by video conference from the visa applicant. The review applicant was represented in relation to the review by his registered migration agent who attended the hearing.

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

   BACKGROUND

8. The review applicant is 51 years old and was born in India. He is an Australian citizen. The review applicant has declared one previous marriage that ended in divorce. He does not have any children. The review applicant is employed as a security guard. His parents and two siblings in Victoria.

9. The visa applicant is a 50-year-old Indian citizen. She has declared one previous marriage that ended in divorce. The visa applicant has two adult daughters from that relationship; aged 25 and 18 years, who are the secondary visa applicants. Prior to her divorce, the visa applicant lived with her former husband in Australia from 2001 until 2004. She departed with him on 7 September 2004 after their visas were cancelled. The visa applicant has not been in the paid workforce since she returned to India. Her father is deceased. The visa applicant’s mother and two siblings live in India.

10. The parties claimed in the application that they met at a shopping centre in Sydney in June 2002 and formed a romantic relationship in 2006. They were married in India on 19 September 2011.

11. The visa applicant lodged an earlier application for a Partner visa (Subclass 309) in December 2011, which was refused by the Department on 6 November 2013. The review applicant sought review of the decision and it was affirmed by a differently constituted Tribunal in February 2015. An appeal to the Federal Circuit Court was dismissed in May 2015.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Prior to the hearing the review applicant’s representative provided additional documents to the Tribunal, including but not limited to the following: bank statements, submissions by the representative, a statement by the review applicant, records of communication between the parties, and photographs of them together during the review applicant’s trips to India.

13. In making my decision, I have considered the documents in the Department and Tribunal files, and the oral evidence at the hearing.

14. During the assessment of the previous application lodged by the visa applicant, the Department received information that the parties’ relationship was contrived for visa purposes, that the visa applicant was continuing to live with her former spouse, that the review applicant continues to be in a relationship with his former spouse, and that the review applicant was sending money to the visa applicant in India because he was purchasing a property there. The Department also conducted a home visit to the visa applicant’s home and concluded that the relationship between the parties was not genuine. In her assessment of the current application, the delegate noted that the visa applicant’s former husband has remarried. However, she considered that the concerns identified during the previous application remained.

15. I carefully considered the history of the matter and the evidence regarding the home visit that occurred in India during the assessment of the previous application. I was mindful that almost five years has passed since the delegate made her decision in the current matter. I also had the benefit of additional supporting documents and speaking with the review applicant directly in person. I spoke separately with the review applicant prior to contacting the visa applicant. The parties provided largely consistent and coherent oral evidence regarding the nature of their relationship, their finances, and their living arrangements during periods that the review applicant is in India. The inconsistencies in the oral evidence were relatively minor. The parties were vague and appeared reluctant to discuss the contact that the visa applicant’s daughters are having with their father. I placed limited weight on this and considered it understandable given the previous allegations received by the Department that the visa application continues to be a relationship with her former partner. There was no evidence before me to indicate that the parties continue to be in relationships with their former spouses, or that their relationship is contrived for visa purposes.

    Whether the parties are in a spouse or de facto relationship

16. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

17. ‘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            reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

18. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. There was no evidence before me to cast doubt on the validity of the parties’ marriage in India on 19 September 2011, and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, I find that 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?

    Financial aspects of the relationship

19. The review applicant lives alone in a two-bedroom apartment in Auburn and is repaying a mortgage. He works full-time as a security guard, and frequently works additional shifts. The visa applicant lives in an apartment she owns in India with her two daughters, who are both students. She is not in paid work. The visa applicant owns a second apartment on the ground floor of the same building, which she rents out. The visa applicant’s former husband owns the apartments on the upper floor of the building. I accepted that those apartments are rented out to tenants.

20. The parties have a joint Westpac Bank account. The review applicant also has a Westpac Bank account in his own name, as well as a mortgage account with the Commonwealth Bank. The parties gave consistent oral evidence that the visa applicant has electronic access to all of the review applicant’s bank accounts and arranges for his bills to be paid. She also transfers money from the review applicant’s accounts to herself as required to pay for her expenses and those of her daughters. The review applicant is paying all of the expenses related to the visa applicant’s property in India, including water, electricity, and rates. He has also been paying the school and university fees for the visa applicant’s daughters. The bank statements provided confirm the parties’ oral evidence about the above matters.

21. The Tribunal was provided with statements from the review applicant’s superannuation fund. They confirm that the review applicant has listed the visa applicant as the sole beneficiary of his superannuation. Furthermore, the visa applicant’s address in India is listed by the superannuation fund as the review applicant’s current residential address.

22. The parties provided persuasive evidence that the review applicant has been financially supporting the visa applicant and her daughters since 2009. The review applicant’s representative estimated in his submissions that the review applicant has transferred approximately $163,000 to the visa applicant between 2009 and 2022. Large and frequent transfers are evident from the bank statements provided. The review applicant confirmed at the hearing that some of those funds were used to build the property that the visa applicant currently lives in. He has also been contributing to the upkeep of that property. Although the review applicant’s name is not on the title, he considers it a joint asset because he and the visa applicant are married.

23. The delegate expressed concern in her decision that the visa applicant continues to own property in India with her former husband. The parties gave consistent oral evidence at the hearing that the partitioning of the property has been finalised and the visa applicant is the sole owner of two apartments in the building. I accepted that evidence.

24. While the parties do not jointly own any assets or have any joint liabilities, this is not surprising given they live in different countries. They do not owe any legal obligations to each another. I accepted that the review applicant financially supports the visa applicant and her daughters and has been doing so for many years. He works multiple jobs and accepts additional shifts to pay the expenses associated with two households. This appears to be having a detrimental impact on his physical and emotional health and wellbeing. The visa applicant receives some rental income from the ground floor apartment that she owns. The parties share day-to-day household expenses whenever the review applicant is in India, although the visa applicant’s contribution is minimal as her income is limited.

25. The parties’ finances are intertwined despite them living in different countries. The visa applicant is essentially managing their finances from India, including ensuring that all of the review applicant’s bills are paid.

26. The financial aspects of the relationship are consistent with the parties being in a genuine and continuing spousal relationship.

    Nature of the household

27. The review applicant generally spends around a month with the visa applicant in India each year, although this was unavoidably disrupted due to the COVID-19 pandemic travel restrictions. For a 12-month period from June 2018 to June 2019, the review applicant lived with the visa applicant and her daughters in India. The parties gave wholly consistent oral evidence regarding their household arrangements during periods that the review applicant is in India. They share the cooking and cleaning and do the grocery shopping together. The visa applicant does not own a car and they generally walk or use taxis. The parties do not have any joint responsibility for the care and support of children. I accepted that the review applicant has formed a close bond with the visa applicant’s daughters. The visa applicant said her daughters get along well with the review applicant and often seek advice from him.

28. The review applicant advised that his visits to India are limited by his finances and leave entitlements. He rented out his home for 12 months from June 2018 to June 2019 and did not work during that period as the rent was sufficient to cover the mortgage. The review applicant denied that he ever stays with friends or distant relatives when in India and confirmed that he spends all of his time with the visa applicant. That evidence impressed me as sincere. It was also consistent with the other evidence before me.

29. I was satisfied that the parties intend to establish a joint household in the review applicant’s home in Sydney and they will share domestic tasks.

30. I placed some weight on the establishment of a joint household, particularly during the 12-month period that the review applicant lived in India between June 2018 and June 2019.

    Social aspects of the relationship

31. The photographs provided prior to the hearing show the parties at various social events with the visa applicant’s daughters, mother, siblings and extended family members. I accepted that the visa applicant’s family did not initially support the relationship, but they have gradually warmed to the review applicant and now accept him. The visa applicant’s family were upset about her divorce, and the review applicant’s religion and language are different from that of the visa applicant’s family.

32. There is limited information as to the social recognition of the relationship by the review applicant’s family. He gave oral evidence at the hearing that he has limited contact with his family as they were vehemently opposed to his divorce. His first marriage was an arranged marriage to his first cousin. The review applicant said he moved to Sydney from Melbourne to distance himself from his first wife and his family.

33. Photographs confirm the parties’ oral evidence that they have been on holidays to various locations within India with the visa applicant’s daughters, mother and sister. Although the visa applicant is Hindu and the review applicant is Catholic, they do not see this as an issue and support each other to maintain their respective faiths. I accepted that the parties have attended weddings, birthday parties, festivals and other celebrations together in India.

34. The parties provided statements from third parties confirming that they believe the relationship is genuine. While this evidence was not extensive, I was satisfied that the parties socialise with others and hold themselves out to others in the community as being in a spousal relationship. I find that the parties have participated in various social activities together and will continue to do so in the future.

35. The social aspects of the relationship support a finding that the parties are in a genuine and continuing relationship.

    Nature of the persons’ commitment to each other

36. The parties have now been married for more than 12 years. I accepted that the review applicant has spent lengthy periods living with the visa applicant in India, including a 12-month period from June 2018 to June 2019. In total, the review applicant has spent around 18 months in India since the parties’ marriage.

37. The review applicant’s decision to give the visa applicant full electronic access to his personal bank accounts indicates that he trusts her greatly.

38. The parties demonstrated considerable knowledge about each other’s families and personal circumstances during the hearing. They presented as determined to maintain their relationship and establish a joint household, despite the substantial obstacles and delays they have faced since their marriage. The parties gave a generally consistent account of their plans for their future, including to live together in the review applicant’s home with the visa applicant’s daughters. The visa applicant hopes to find work in Australia and her daughters will continue their studies. The parties plan to buy a larger property when their finances permit. I was satisfied that the parties communicate on a daily basis and provide one another with a high degree of companionship and emotional support.

39. I was satisfied that the parties have a long-term commitment to each other. This provides significant weight on support of a finding of a genuine and continuing relationship.

    Conclusion

40. Given the above findings, I was satisfied that at the time of the visa application and at the time of this decision the parties were in, and continue to be in, a genuine and continuing relationship and have a mutual commitment to a shared life as husband and wife to the exclusion of all others. They have lived together in India and intend to resume that arrangement in Australia. Therefore, they do not live separately and apart on a permanent basis.

41. I was 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. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

42. As I was satisfied that the visa applicant meets the above criteria for the grant of the visa, the applications for the secondary applicants should now be reconsidered in full.

43. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

1. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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

   Glynis Bartley
   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).