Dharmareddy (Migration)

[2021] AATA 965

Dharmareddy (Migration) [2021] AATA 965 (17 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gnanasegaran Dharmareddy

CASE NUMBER:  1821611

HOME AFFAIRS REFERENCE(S):          BCC2014/1467470

MEMBER:Moira Brophy

DATE:17 February 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

·cl.100.221(2)(b) of Schedule 2 to the Regulations.

Statement made on 17 February 2021 at 5:13pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – genuine spousal relationship – remarriage after divorce in 2001 – financial aspects – nature of household – social aspects – nature of commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 100.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

1. The issue in the present case is whether the applicant, Mr Gnanasegaran Dharmareddy, and his sponsor, Mrs Radha Gnanasekaran, are in a genuine spousal relationship.

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 July 2018 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

3. The applicant applied for the visa on 15 June 2014 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

4. On 12 October 2015 the applicant was granted a Subclass 309 visa on the basis that he was the spouse of his sponsoring spouse.

5. The criteria for the grant of a Subclass 100 visa are set out in Part 100 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.

6. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221(2)(b) because there was a lack of evidence provided to establish the relationship was a genuine and continuing one.

7. The applicant appeared before the Tribunal on 16 February 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and from their daughter, Ms Lakshmi Gnanasekaran. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Indian) and English languages.

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

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

   Background

10. The applicant, Mr Gnanasegaran Dharmareddy was born in 1956 in Anaicut, India. His parents are deceased. He has two brothers and one sister living in India.

11. The sponsor, Mrs Radha Gnanasekaran was born in India in 1964. She is an Australian citizen. The sponsor’s parents and one sister are deceased; she has three brothers and two sisters in India.

12. On their application the parties stated they first met on 21 February 1982 and they were married on 7 November 2013.

13. On 29 January 2018 the Department wrote to the applicant requesting further information to consider the application for a Partner (Migrant) (Class BC) Subclass 100 visa.

14. On 24 July 2018 the delegate refused to grant the visa on the basis that the applicant did not satisfy cl.100.221 because the delegate was not satisfied that the applicant continued to be in a spousal relationship with the sponsor.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files as well as the oral evidence provided by the applicant, the sponsor and their daughter at the hearing.

16. The parties gave detailed and consistent evidence about the history and nature of their relationship, their current living arrangements, financial affairs, employment and each other’s families. The Tribunal found them to be credible. On the basis of the evidence before it the Tribunal accepts that the parties met on 21 February 1982 and were married in 1983. Their daughter was born on 25 September 1983. The parties divorced in 2001 and the sponsor was granted custody of their daughter. The sponsor and their daughter were sponsored to Australia and they arrived on 30 January 2001. The applicant came to Australia for their daughter’s marriage on 14 July 2008. In 2010 their daughter invited her father to come to Australia to meet his first grandchild who was born in November 2010. From that time the parties remained in contact and the applicant came back to Australia in 2011 for his granddaughter’s first birthday. The parties were married in India on 7 November 2013. The sponsor returned to Australia after their marriage. The sponsor visited the applicant on two further occasions in 2014 and 2015. The applicant was granted a Subclass 309 visa on 12 October 2015 and he arrived in Australia on 18 December 2015. The parties have resided together since that time.

    Whether the parties are in a spouse or de facto relationship

17. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen.

18. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.

19. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)–(d). In forming an opinion about these matters, regard must be had to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

20. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. There is nothing in the information before the Tribunal to cast doubt on the validity of the parties’ marriage in India on 7 November 2013, and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, the Tribunal finds that the marriage between the parties is a valid marriage 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

21. Both the applicant and the sponsor are in paid employment. Their earnings are paid into their joint account. From that account they pay for their daily needs. The sponsor has an account in her name alone and the rent from the investment property is paid into that account and the mortgage repayments on that property are direct debited from that account. Monies are transferred from the joint account into that account if required.

22. They do not have any assets in joint names nor do they have any liabilities. The sponsor has investments with her daughter and son-in-law and the parties gave evidence that the applicant would be included in those investments once he has a permanent visa.

23. They were aware of the details of each other’s finances.

24. The Tribunal accepts that the applicant and the sponsor pool their financial resources and share expenses. The financial aspects of the parties’ relationship are consistent with a genuine spousal relationship.

    Nature of the household

25. The parties gave wholly consistent evidence about their living arrangements. The parties reside in a four-bedroom house with their daughter, son-in-law and two granddaughters. They have lived there as a family since the applicant arrived in Australia in 2015.

26. The parties gave consistent evidence the sponsor does the majority of the cooking, they share the housework and the washing. They go grocery shopping together and they do the gardening together.  

27. The evidence of the establishment of a joint household provides significant weight in support of a finding of a genuine and continuing relationship.

    Social aspects of the relationship

28. The parties gave consistent oral evidence about their respective families and the Tribunal is satisfied that they have regular contact with each other’s families.

29. The Tribunal accepts the evidence of their daughter, the photographic evidence and the sworn statements and declarations from friends.

30. The Tribunal is satisfied that the parties represent themselves as being in a spousal relationship to their family, friends and the wider community.

    Nature of the persons’ commitment to each other

31. The applicant and the sponsor have been married for around seven and a half years. They lived together in India for periods before the applicant came to Australia and they have lived together continuously since he arrived in December 2015. The parties demonstrated considerable detail about one another’s lives at the hearing. They were aware of each other’s families. It was clear they placed a high value on being an integral part of their daughter and granddaughters’ daily lives.

32. While on the history as given by the parties the Tribunal had some concerns about the relationship, and whether it was really an application for a visa to allow another member of the family to be in Australia, the Tribunal accepts that the relationship is a genuine relationship. The Tribunal accepts the conduct of the parties and their tenacity over the years given their earlier marriage had broken down has of itself been a strong indicator of their commitment.

33. The Tribunal is satisfied that the applicant and the sponsor draw emotional support from each other and that they see the relationship as a long-term one. The Tribunal places some weight on this consideration.

    CONCLUSIONS

34. The Tribunal has had the benefit of receiving oral evidence in person from the parties and from their witness. It has also received a considerable amount of additional information that was not before the delegate, including bank statements and photographs.

35. Given the above findings, the Tribunal is satisfied that at the time of this decision the parties are validly married, have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. The parties are not living separately and apart on a permanent basis. Accordingly, the Tribunal finds that the applicant satisfies the definition of ‘spouse’ in s.5F(2)(a)–(d), and that the parties are in a spousal relationship.

36. The Tribunal is satisfied that at the time of this decision the parties are in a spousal relationship. Therefore, the applicant meets cl.100.221(2)(b).

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 100 visa.

    DECISION

38. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

    ·cl.100.221(2)(b) of Schedule 2 to the Regulations.

    Moira Brophy
    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 the circumstances of the relationship, including the matters set out in sub regulation (3).

    (3)The matters for sub regulation (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).