Jagdeep Kaur (Migration)

[2021] AATA 475

Jagdeep Kaur (Migration) [2021] AATA 475 (15 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Jagdeep Kaur

VISA APPLICANT:  Mr Lakhvir Singh Grewal

CASE NUMBER:  1831684

HOME AFFAIRS REFERENCE(S):          BCC2016/4261765

MEMBER:Nicholas McGowan

DATE:15 February 2021

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; and;

cl.309.221 of Schedule 2 to the Regulations.

Statement made 1:36pm on 15 February 2021

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – significantly more evidence received from the parties – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), Schedule 2, cls 309.211, 309.221

WRITTEN STATEMENT OF REASONS

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 (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 16 December 2016.

3. The Minister’s delegate refused to grant the visa on 10 October 2018. The delegate made the decision on the basis that evidence of the applicant and review applicant’s spousal relationship was not provided such that the delegate was satisfied the parties satisfied the criteria for the grant of the visa under the Migration Regulations 1994 (the Regulations).

4. The review applicant appeared before the Tribunal on 15 February 2021 to provide oral evidence and arguments. The Tribunal also took oral evidence from three witnesses Ms Neeru Sethi, Ms Harit Chadha and Ms Sakshi Goswami.

   Are the parties in a spouse or de facto relationship? Are the validly married?

5. The Tribunal is satisfied 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).

6. A copy of the marriage certificate has been provided and a copy will be provided (with this Written statement) to the Secretary as per the Act.

7. Consideration of the ‘genuineness’ of the marriage documentation are a matter for the Secretary, though it has been accepted at ‘face value’ for the purposes of this review (by this Tribunal) as the Department raised no earlier concerns in the delegate’s refusal decision dated 10 October 2018.

   Are the other requirements for a spousal relationship met?

8. The Tribunal has considered all the circumstances of the relationship (including the matters specified in r.1.15A) in determining whether the parties are in a “married relationship” as defined by s.5F(2).

9. The Tribunal has had regard to the parties’ financial relationship; the nature of their household; the social aspects of the relationship; and the nature of their commitment to each other.

10. On these (above mentioned) aspects the Tribunal has considered all the evidence before it and is satisfied the facts of this case are as follows (the evidentiary basis for the following is the audio recording from the Tribunal’s hearing and all the documentary evidence submitted by the parties’, which the Tribunal notes is significantly more than the delegate had previously):

    -    Outside of marriage, they owe no legal obligation to each other.

    -    The parties share an understanding of their financial affairs, though they do not depend on one another for financial support.

    -    The parties have no children together.

    -    The parties anticipate establishing a household for themselves in Australia once the applicant relocates from India.

    -    The parties last saw each other in person in 2019, the period of physical separation has been ‘extended’ because of the difficulty in travelling post-covid-19.

    -    The parties represent themselves as being married to each other (based on the oral evidence of the review applicant’s witnesses (including numerous statements on the Tribunals’ file).

    -    The parties have now been married for exactly five years tomorrow.

    -    The parties first lived together after their marriage in 2016, albeit for a brief period.

    -    The oral evidence from the applicant’s parents (when the Department conducted a site visit) was that they knew of their son was marriage to the review applicant in February 2016.

    -    The parties had known each other since 1996 when they studied together.

    -    The review applicant advises she has been estranged from her family and fears them because they oppose the marriage to her husband.

    -    The review applicant told the Tribunal she has not spoken to her brother since December 2014, and neither of her parents since 2016.

11. In forming the above view, the Tribunal had careful regard to the site visit conducted by the department.

12. The Tribunal also carefully considered the ‘new’ documentary evidence, which was not provided to the delegate previously, including photographs and various statements and will be provided by this Tribunal to the Secretary of the Department (and his/her delegate):

    Submission 8091711 9/02/2021

    Submission 8091719 9/02/2021

    Submission 8091738 9/02/2021

    Submission 8091743 9/02/2021

    Submission 8091759 9/02/2021

    Submission 8092342 9/02/2021

    Submission 8092401 9/02/2021

    Submission 8092497 9/02/2021

    Submission 8093085 9/02/2021

    Submission 8093105 9/02/2021

    Submission 8099662 11/02/2021

    Submission 8099672 11/02/2021

    Submission 8099676 11/02/2021

    Submission 8100121 11/02/2021

    Submission 8101155 11/02/2021

    Submission 8101165 11/02/2021

    Submission 8108582 15/02/2021

    Submission 8108894 15/02/2021

13. Considering all the new evidence, the Tribunal is satisfied that there is public recognition of the parties’ relationship.

14. The Tribunal is satisfied by the review applicant’s oral evidence at hearing that they couple are in a genuine and ongoing spousal relationship.

15. In respect of whether there is a mutual commitment to a share life as husband and wife to the exclusion of all others the Tribunal accepts the parties’ claims as presented.

    FINDINGS

16. The Tribunal is satisfied that the parties’ marriage is valid for the purposes of the Act as required by s.5F(2)(a).

17. The Tribunal is satisfied that at the time of application and at the time of decision the review applicant and the visa applicant 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.

18. The Tribunal is also satisfied that at the time of application and at the time of decision the parties meet the requirement of s.5F(2)(d) for a married relationship, in that they do not live separately and apart on a permanent basis.

19. For these reasons the Tribunal is satisfied that at the time the visa application was made the parties were in a ‘married relationship’ within the meaning of s.5F(2) of the Act. The Tribunal further finds that at the time of decision, they continue to be in a married relationship.

20. The Tribunal therefore finds that at the time of the visa application the visa applicant was the spouse, within the meaning of s.5F of the review applicant, who is an Australian citizen, and meets the requirements of cl.309.211(2) of Schedule 2 to the Regulations. Therefore the visa applicant meets cl.309.211.

21. Further the Tribunal finds that at the time of the Tribunal’s decision the visa applicant continues to be the review applicant’s spouse, and so continues to meet cl.309.211, and therefore meets the requirements of cl.309.221 of Schedule 2.

22. 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.

    Nicholas McGowan
    Member