George (Migration)

[2023] AATA 312

George (Migration) [2023] AATA 312 (21 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashish Oommen George

CASE NUMBER:  1817353

HOME AFFAIRS REFERENCE(S):          BCC2017/1719328

MEMBER:Brian Camilleri

DATE:21 February 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 21 February 2023 at 12:07pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – genuine sponsorship – limited cohabitation – extended temporary separation – applicant seeking residence in Canada – little commitment of a shared life – sponsorship not genuine – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.03, 1.15

CASES

He v MIBP [2017] FCAFC 206

statement of decision and reasons

application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 May 2017 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the applicant could not establish being in genuine spousal relationship and in fact that his wife, at the time, was prepared to sponsor the applicant.

4. The applicant appeared before the Tribunal on 5 August 2022 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Consideration of claims and evidence

6. The issue in the present case is whether the applicant could claim to be in a genuine spousal relationship and that his alleged sponsor was a willing sponsor. (She stated she was initially unaware the application had been lodged and she had been nominated as the sponsor).

   Whether the parties are in a spousal or de facto relationship

7. Clauses 820.211and 820.221 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 have been the spouse of the sponsor who is an Australian citizen.

8. ‘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 parties’ 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

9. The evidence is that the applicant and the person whom he claims to be his sponsor were married in Kerala, India on 5 January 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?

10. The delegate found that at the time of lodging the Visa application, the applicant had not provided Form 40SP, specifying the sponsor for the purposes of providing sponsorship of his Partner visa application and therefore did not meet sub clause 820. 211 (2) (C). Furthermore, the applicant was unable to meet the requirement that he could establish that he was the spouse or a de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen and hence did not meet sub clause 820. 211 (2) (a). As such, the applicant did not meet Regulation 820. 211 (2).

11. The Tribunal considered the following:

    (a)  the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

    (b)  the nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

    (c)   the social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

    (d)  the nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

    (e)  any other circumstances of the relationship.

12. In the course of the hearing the applicant demonstrated that he had a good command of English, and no interpreter was required. The representative was not present at the hearing. The applicant lives in Brighton Le Sands, NSW in shared accommodation with others. The applicant works. He was born in Kerala, India, in November 1985 and was aged 36, at the time of the hearing. He finished Year 12 in 2003. Both parents live in Kerala, India and they also own a house in Bangalore, India.

13. Between the time that he finished school in 2003 and when he arrived in Sydney in 2006, he completed a Bachelor of Management Studies. Between 2006 and 2016 he mostly worked in India in the human resources department of an insurance company. He later completed a postgraduate course in Management studies, and then a Master of Business Administration (completed in the United Kingdom). For a time, he was entitled to work in the UK. He was eventually laid off and returned to India in 2009.

14. Whilst in India he was employed by a financial services company. He later returned to his core skill of information technology and completed an ASAP qualification and worked with the French firm until about 2017. During these years before meeting his wife (the alleged sponsor) he was in a relationship which concluded in 2013. There were no children of that relationship.

15. The applicant came to Australia in 2016 on a 12-month Tourist visa, travelling at the time with his parents. He arrived in Sydney and went to Canberra and the Gold Coast and returned to India and continued to work with the French company referred to earlier until 2017. The applicant came to Australia on second trip. Whilst he was still in India, an aunt introduced him to Rebecca Matthews, (his wife to be) and they started communicating. He came to see her for five days in September 2016.

    Financial circumstances, nature, commitment of the relationship.

16. After he came to Australia for a time and his alleged sponsor, Rebecca Matthews returned with him to India. He claims they became engaged in October 2016 as his parents wished him to go through an engagement. They had religious counselling beforehand consistent with the community values of his parents. He claims that he and Rebecca Matthews were married in Kerala, India on 31 December 2016. They lived for three days at his parents’ home and then they went to her parents’ home for a few days.

17. They did not establish a home for themselves whilst they were in India as they were moving between the houses of relatives. Although Rebecca Matthews’s parents lived in India she was living in Australia as an Australian citizen. After their marriage they travelled to Malaysia for a week and stayed at a beachside resort in Malaysia. They left Malaysia and went via Perth (one night) to see a relative and then he returned to Mumbai, India. Rebecca Matthews returned to her employment in Australia. She was an SEP consultant in information technology. He claims he remained in Mumbai, India until March 2017. He also claims sexual relations were re-established when he came to Australia on 11 March 2017.

18. When he arrived in Australia, he together with his wife lived at his sister-in-law’s house in Blacktown, NSW for about 11 months, until about February – March 2018. Whilst he was at his sister-in-law’s home, he did not pay rent. The cooking was done by the (3) women in the house. His sister-in-law tended to do most of the washing. He assisted in minor household work.

19. The applicant conceded the relationship was “always rocky” and especially critical by December 2017 – March 2018. One of the issues was whether or not he would conduct his own business full-time or work for a company (and conduct a part-time business). He claims a relative of his in Canberra (not identified) tried to assist him during December 2017 to March 2018 to reconcile the parties to the marriage but gave up and suggested the couple should temporarily separate. He moved out and then lived in Wentworthville, NSW in a granny flat hoping that his wife would come to live with him at that location. She was not interested.

20. He initially stated that he was divorced in May 2018 but later corrected this to May 2019. He would have had to file papers for a divorce, at least by May 2018, which coincides more favourably with the timeline he outlined. He claims that it was his wife who informed him that he was entitled to apply for a Partner visa (even whilst he was on a Tourist Visa). He says that he lodged an application for a Partner visa and gave her access to the codes to the application, but he claims that she changed the access codes and effectively locked him out of his application.

21. In the courses of the hearing the applicant stated that he was actually interested in seeking residence in Canada and he was not seeking residence in Australia. He claimed that his purpose of persisting with the application for review before the Tribunal was that he was concerned that if it was recorded in Australia that a visa application had been rejected that this would jeopardise his proposed application for a visa to Canada and he believed that that country and Australia shared their visa information. When questioned as to why he had not withdrawn his application for a Partner visa. He again stated that he did not intend to stay in Australia, and he did not intend to have either a Partner or a sponsor.

22. The Tribunal finds that the explanation of the applicant that in some way he was pursuing the review before the Tribunal to accommodate a worry about the recording of rejection by the Australian immigration authorities which might affect travel for himself, and any future partner as fabricated to disguise the fact that he was pursuing an application for review without any conceivable merit for the sole purpose of extending his stay in Australia for some unidentified reason of his own. The Tribunal concluded that the justification put forward by the applicant before the Tribunal was false.

23. He claims his wife initially put herself forward in the sponsorship position, but she changed her mind. He lodged his visa application in May 2017, and he claims that his wife had encouraged the application and was fully aware of it. She wanted to be the sponsor.  He then says that she subsequently acquired the axis codes to the application and changed the access codes and locked him out.

24. The Tribunal is sceptical of whether or not the marriage was in fact a “marriage” in the sense that there was a recognised commitment of a shared life together etc or merely a liaison. The Tribunal accepts the declaration from the wife (the alleged sponsor) that she was unaware of the application for the visa having been lodged and that she had been nominated as sponsor. The applicant has been pursuing a hopeless application for review. He is not seeking residence in this country. He is self-aware which underlies the conclusion of the Tribunal that the applicant is contriving to extend his stay in Australia for as long as possible, for whatever motivations of his own.

25. On the basis of the above the Tribunal is not satisfied that the requirements of s 5F (2) are met at the time the visa application was made and/or the time of this decision.

26. Therefore, the applicant does not meet cl 820.211 and/or cl 820.221.

    Is the applicant sponsored?

27. Clause 820.211 requires at the time of application; the applicant meets one of several alternative sub criteria. These include 820.211 which requires that the applicant was, at the time of application, sponsored by the sponsor, where such person has turned 18; or where they have not, by the sponsor’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

28. At the time of decision, the applicant must continue to be sponsored by the sponsor, and the sponsorship must have been approved by the Minister and be still in force. Exceptions apply in certain circumstances where the sponsor has died, or family violence has occurred, or a child is involved.

29. At the time of application and the time of this decision the requirements of sponsorship are not met. On the evidence before the Tribunal for the requirements of cl 820.211 and/or cl 820.221(4) are not met. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

30. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Brian Camilleri
    Member

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).