Gill (Migration)

[2018] AATA 3166

Gill (Migration) [2018] AATA 3166 (28 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anish Gill

CASE NUMBER:  1722847

DIBP REFERENCE(S):  CLF2011/196687

MEMBER:Nicholas McGowan

DATE:28 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

· cl.801.221(2)(c) of Schedule 2 to the Regulations.

Statement made on 28 May 2018 at 12:39pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Whether the sponsor is the ‘sponsoring partner’ of the applicant – Relationship ongoing for a significant period – Significant emotional support between parties – Broadly credible explanations for potentially adverse information – Credible, largely consistent evidence provided - Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, 802.221

WRITTEN STATEMENT OF DECISION

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 September 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) Subclass 801 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visas on 21 November 2011. The applicant was granted an 820 visa on 19 March 2013. The applicant was refused the 801 visa on 13 September 2017. The applicant appealed that refusal on 24 September 2017.

3. The applicant and sponsor appeared in Melbourne before a public hearing on 28 May 2018.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant: cl.820.221(2)(c).

5. In this case, the Tribunal considered the circumstances of the parties as set out in r.1.15A(3) in forming an opinion as to the matters in s.5F(a)-(d).

6. The evidentiary basis for the Tribunal’s findings is the oral evidence as provided at hearing by the applicant and sponsor (and documentary evidence as filed with both the Department and Tribunal, which includes the documentation handed to the Tribunal during the public hearing held in Melbourne on 28 May 2018).

7. The applicant claims he first met the sponsor in March 2010 at Clayton Station, although they had planned to meet in the city. They met at Clayton station because his car had broken down. He claims he was contacted by the sponsor over the telephone as he was running late. The sponsor confirms this. The applicant told the Tribunal he ‘forgot to call her’, but corrected himself and said he was rushing to fix the car, and in the meantime she had telephoned him. The applicant claims he was able to then arrange to meet the sponsor at Clayton Station, where she travelled to meet him. At that time the applicant says he lived in Springvale, and so met the sponsor at Clayton Station. He claims to have borrowed his Gagan’s car (his housemate and friend) to get to Clayton. They then went to Mordialloc beach. They spoke at the beach, and afterwards he drove her back to her home in Clayton. The next occasion they met was two days later. The applicant claims they ‘just went out for coffee’. He claims he picked her up from her house and they went to the pancake parlour in Dandenong sometime between breakfast and lunch. After this second meeting, the applicant claims his sponsor started coming over to his house and they starting ‘bonding’ and ‘getting closer and closer’. Then in April or May she decided to ‘move in with me’. The applicant claims that ever since then, they have been together.

8. The applicant claims he has never seen his sponsor’s two children (from her previous relationship). The applicant claims the sponsor has never seen, spoken to or been with her kids since they’ve been together. The sponsor provided consistent oral evidence in this regard. The applicant says he has never seen the sponsor’s parents face-to-face (as they live in Fiji), but claims that he has spoken to them. The applicant claims his sponsor met his parents when they came to Australia in 2016. The applicant claims his parents stayed at his house, with he and his sponsor. The sponsor concurred. The applicant claims he and the sponsor are trying for children, and says they had multiple miscarriages. They occurred in 2013 and 2014. These claims are backed up with actual documentary evidence handed to the Tribunal during the hearing (which will be shared with the Minister) remitted along with this decision.

9. The Tribunal brought the applicant’s attention to a statement he wrote (folio 234-235 on the Department file) in which he states he first met his wife in 2010 “…at a friend’s birthday party and instantly I was attracted to her. We started a conversation over Facebook and soon we were dating.” The applicant apologized and said that was the first time they met (saw one another). I then reminded him of the account he’d given the Tribunal at the hearing. The applicant claims the first interaction was at the birthday party, but that the first date was at Clayton station and the beach as outlined for the Tribunal.

   Financial aspects

10. The applicant says he and the sponsor have bills in joint names and a house lease, for which he provided a copy of the ‘Schedule’. It states both his and the sponsor’s name and the lease commencement date as 15 January 2018 for a period of nine months (ending 14 October 2018). The Tribunal asked why they leased a home for only nine months (at 56 Hampshire Road, Glen Waverley). The rent of which is $1738 and paid monthly by direct debit, the applicant then clarified that ‘he transferred that money’, from his ANZ bank account to the real estate agent’s account. The applicant said he also has a joint NAB account. The applicant says he doesn’t use it anymore, but says that the sponsor uses it because she gets paid into that account from her job as a hairdresser which she began last year ‘around September’. He then added around September/October. The applicant says the sponsor gets paid depending on the day she works, adding she works a minimum of three days. He said she works, Wednesday, Thursday, and Saturday. Sometimes Friday rather than Thursday, but that depends on both the sponsor and the employer. The applicant says the sponsor is starting a new job this Friday at a hairdresser’s salon in Mentone. He claims she’s moved because she’s ‘not happy’ with the pay and hours she’s getting. He claims the sponsor will get $20-21 dollars an hour and a minimum of 30 hours a week.

11. The applicant provided the Tribunal with a copy of a Department of Justice Bond transfer dated 27 June 2017 listing three tenants – the parties, including one Gurpreet Singh (their housemate) for a property at 1/61 Bevan Avenue Clayton South. The applicant claimed he first moved into this house with the sponsor in August 2016. The Tribunal notes the form provided is a ‘Change of Tenants” form and asked the applicant who the previous listed tenants were – given this is dated 27 June 2017. The applicant said he was not sure, and added he could provide other documents. The applicant provided a copy of an electricity account (issued 11 May 2017) for Unit 1, 61 Bevan Avenue in his and the sponsor’s name.

12. The applicant is employed as a full-time Department (Assistant) Manager at McDonalds (Clayton). The applicant says he has no Will, and neither does his sponsor. The applicant says he has a loan with the ANZ for his car which is for around $20,000. He says he brought a BMW car in 2016, which he paid around $25,000 from a private seller on gumtree. The applicant had a credit card, which the credit card issuer has now stopped him from using as he has around $8-9,000 in unpaid credit card debt. The applicant says he earns $850 after tax. The applicant says he mostly pays the household bills. The sponsor concurred.

    Nature of the household

13. The applicant and sponsor’s statutory declarations dated 15 and 12 September respectively, the applicant and sponsor listed 3 Bertha Street, Springvale as the current address. In the applicant’s statutory declaration dated 20 February 2014 the same address had been listed. On 15 August 2014 the applicant notified the Department in writing of his change of address to 1/40 David Street, Noble Park. During a telephone interview conducted with the applicant on 2 November 2016 the applicant first stated he resided at 102 Ellen Street, Springvale since late 2014 and lived at 1/40 David Street, Noble Park from early 2014 to October/November 2014. The applicant amended this and advised he and his sponsor and his two sisters and cousin moved to 1/61 Bevan Avenue, Clayton South in September 2016.

14. The Tribunal discussed the claimed living arrangements in detail during the public hearing. The applicant confirmed to the Tribunal that he and his sponsor and Gurpreet Singh moved into 1/61 Bevan Avenue Clayton South in August 2016. The applicant then added that his two sisters also lived with them. The Tribunal pointed out that the distinct impression made in its mind from the applicant’s oral evidence is that he and his sponsor currently lived alone and that prior (at the Bevan Avenue address) Mr Singh was the only other tenant. The applicant claims his first sister started living with he and the sponsor in 2014 when she came to Australia and the second sister likewise when she came to Australia a year later in 2015. The applicant claims he was living in Springvale when he and the sponsor first met, at 70-72 Princess Avenue. The Tribunal pointed out that his claim is that his sponsor also lived there with him. First he said they lived there for two months. He says they then moved to ‘Clark Road’ in Springvale, but doesn’t recall the exact spelling or unit number. They stayed at ‘Clark Road’ for around 8-9 months, they then moved to Browning Avenue in Clayton South.  They stayed there for one year, and moved out in January 2012. They then moved to Bertha Street Springvale (2012-2014). After Bertha Street they lived at David Street Noble Park from February until October 2014. They moved to 102 Ellen St Springvale where they stayed until July 2016, before moving to Bevan Avenue in Clayton South.

15. The Tribunal discussed the Department’s concerns with regards to the sponsor’s confusion in regards to where they claimed to have lived together, and the address she gave on her incoming passenger card when she left Australia to go to Fiji and visit her parents.

16. The applicant claims his two sisters and their husbands (all foreign nationals) his sponsor and he live together, and have done so since his sisters’ respective arrivals in Australia. The applicant claims he pays $700 per month, and the others pay their share. The applicant says there are four bedrooms (one spare) and the others for each couple. The applicant says there are two bathrooms, one near the master-bedroom and another standalone bathroom. The applicant says only he and the sponsor use their bathroom which adjoins their master-bedroom. This was not confirmed by the sponsor, but was relatively minor in discrepancy. The applicant says their bathroom has a shower and toilet only, no bath. The sponsor confirmed this. Their home has one car space in the garage, which he parks in. The sponsor’s car is parked outside.

17. In regards to household chores, his sponsor and sister share the cooking and household chores. The sponsor spoke to the same.

    Social aspects

18. We have been ‘…socialised since last year’, we live with family and have been pretty much busy in our own life.’ The applicant claims for their anniversary they went to a movie together. When asked about any other significant activities, he said they went out for takeaways on Saturday night from an Indian restaurant called Bonfire.

19. The Tribunal discussed the applicant’s parent’s visit in 2016. The applicant also handed the Tribunal a copy of a statement from his father, which is in addition to the evidence on the Department file to date.

20. The applicant’s sponsor expanded on their social aspects and the impact the migration process has had on their socialising, given some of the grief caused by her previous larking, including photographs posted on Facebook. The Tribunal examined these photographs and the parties’ response to them. They are now some years old, and while they speak to a provocative setting, they are not, in the absence of other corroborative proof that the sponsor was engaged in an extra marital affair, or fling of some-kind. They are evidence of flirting and larking and perhaps even naivety, and according to the applicant and sponsor’s own oral evidence, they speak to a relationship which has had its tensions from time to time.

    Nature of the commitment of the relationship

21. The applicant says he and the sponsor have been together over eight years and married seven. He says the sponsor is always with him and always supporting him ‘no matter what.’ The applicant says they also have plans for the future, including working through her medical issues and ‘getting a home’. The applicant’s remarks around future intentions are vague and appeared to get caught up in his occupation with the present migration process. Perhaps, understandably. The Tribunal also raised the Facebook-post dated September 14, 2014 with the applicant and his sponsor (as canvassed in the Minister’s decision record). The applicant says his sponsor had tried to make him jealous with that post. This is consistent with his response through his agent to the department previously. The applicant says his sponsor would want to make him jealous because “she loves me” and he works extra time and maybe hadn’t given her enough time or attention.

22. The Tribunal spoke with the sponsor at length, both about her and the applicant’s life and habits and the emotional support they provide one another. On one occasion the sponsor became indignant, and maybe even offended that she should have to ‘justify’ herself and her relationship time and again. This emotional response from the sponsor did not perturb the Tribunal as it is a common reaction to being queried and having every aspect of your life probed by an external party (i.e. the Tribunal in this case). Broadly speaking the sponsor’s oral evidence was convincing. Her frankness and unembellished explanations helped the Tribunal better understand the nuances of her relationship with the applicant, and vice-versa. In large measure, the sponsor’s oral evidence accounted for many, if not all of the misgivings the Tribunal had, as she spoke plainly to her motivation and what she received from the relationship, including an articulation of the circumstances of their relationship as she recalled. As the answers the sponsor gave to the Tribunal’s questions were spontaneous and plausible, her oral evidence was overwhelmingly deemed both credible and reliable. It logically follows that in large part, the sponsor’s oral evidence largely satisfied the Tribunal of the bona fides of the relationship.

    FINDINGS

23. On the evidence before the Tribunal, the parties were married to each other under a marriage that is valid for the purposes of the Act: s.5F(2)(a).

24. The Tribunal is satisfied that at the time of decision the applicant and sponsor had 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. They therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

25. The Tribunal is also satisfied that at the time of decision the parties meet the requirement of s.5F(2)(d) for a married relationship in that they live together.

26. For these reasons the Tribunal is satisfied that at the time of decision the parties were in a ‘married relationship’ within the meaning of s.5F(2) of the Act.

27. It follows therefore that at the time of this decision the Tribunal’s is satisfied the applicant is the spouse, within the meaning of s.5F, of the sponsoring partner. Therefore, the applicant meets cl.801.221(2)(c).

28. Given these findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria.

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