Jakharia (Migration)

[2021] AATA 3345

Jakharia (Migration) [2021] AATA 3345 (27 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jigar Dineshchandra Jakharia

CASE NUMBER:  1919592

HOME AFFAIRS REFERENCE(S):          BCC2018/2128513

MEMBER:P. Maishman

DATE OF ORAL DECISION:  27 August 2021

TIME OF ORAL DECISION:  11:21 am (WA time)

DATE OF WRITTEN RECORD:                8 September 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2) of Schedule 2 to the Regulations,

·cl 820.221(1)(a) of Schedule 2 to the Regulations,

·reg 2.03A.

Statement made on 08 September 2021 at 12:44pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – de facto relationship for 12 months at the time of application – shared financial resources – shared household – joint social events – cultural and traditional expectations – subsequent marriage – decision under review remitted      

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; rr 1.09, 1.15, 2.03

CASES

Bretag v MILGEA [1991] FCA 582

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 16 May 2018 on the basis of his relationship with his sponsor, Pooja Pravin Fatania. 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(2) because the delegate was not satisfied the applicant had been in a de facto relationship with the sponsor for 12 months at the time of application.

4. At the hearing on 27 August 2021 the Tribunal made an oral decision. The following is the written record of the reasons for that decision.

5. The applicant appeared before the Tribunal on 27 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Pooja Pravin Fatania.

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

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

   LEGISLATIVE BACKGROUND

8. Partner visas involve a two stage process. The visa applicant must hold a provisional visa in order to be granted a permanent visa. The grant of the provisional visa enables the visa applicant to travel to and remain in Australia on a temporary basis. The grant of a permanent visa may subsequently be considered, and generally depends on whether the relationship has continued for a period of at least two years.

9. The criteria for a Subclass 820 visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994. Clauses 820.211(2)(a) and 820.221(1) 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, Australian permanent resident or an eligible New Zealand citizen and that the sponsor was not prohibited from being a sponsoring partner under cl.820.211(2B). In the present case, the applicant claims to have been the de facto partner of the sponsor at the time of the visa application and to be the spouse of the sponsor at the time of decision.

10. ‘De facto partner’ is defined in s.5CB of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, they live together, or do not live separately and apart on a permanent basis, and they are not related by family: s.5CB(2).

11. ‘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 they must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d).

12. In forming an opinion as to the matters required in s.5CB(2) or s.5F(2)(a)-(d), regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the persons’ household and the nature of their commitment to each other, as set out in and r.1.09A(3) (as regards a de facto relationship) and r.1.15A(3) (as regards a spouse relationship), both of which are extracted in the attachment to this decision.

13. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. These are: that the couple are both at least 18 years of age; and with limited exceptions, that the visa applicant has been in the de facto relationship for at least the period of 12 months ending immediately before the date of the visa application, unless he or she can establish compelling and compassionate circumstances for the grant of the visa. The requirement that the relationship existed for at least 12 months prior to the application does not apply in certain circumstances where the sponsor is or was a humanitarian visa holder, or for applications made on or after 9 November 2009, where the de facto relationship has been registered under a relevant State or Territory law: r.2.03(4), (5).

14. Clause 820.211(2)(c) requires the applicant to be sponsored by their spouse or de facto partner if the spouse or de facto partner has turned 18.

15. Additionally, the applicant must be the holder of a substantive visa at the time of the visa application, or certain further requirements must be met (cl.820.211(2)(d)).

16. It follows that the issues to be determined by the Tribunal are:

    (a)  Were the de facto criteria met at the time of the visa application? that is:

    (i)Were the requirements for a de facto relationship met[1]? and

    (ii)Were the additional criteria for a de facto relationship met? including:

    A.   were each of the applicant and the sponsor at least 18 years of age? and

    B.   had the applicant and the sponsor been in a de facto relationship for at least 12 months prior to the date of the visa application? and, if not

    C.   Are there compelling and compassionate circumstances for the grant of the visa or were there other circumstances existing such that the requirement to have been in a de facto relationship for at least 12 months prior to the date of the visa application does not apply?

    (b)  Is the sponsor prohibited from being a sponsoring partner?

    (c)   Is the applicant sponsored as required? and

    (d)  Did the applicant hold a substantive visa at the time of the visa application?

    (e)  Do the requirements of cl.820.211(2) continue to be met at the time of decision, in particular are the spouse criteria met at the time of decision?

    [1] S.5CB(2) of the Act

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The Tribunal had before it a copy of the Department’s file containing the visa application, sponsor form and documents received by the Department. The applicant claims to have first met the sponsor in July 2008 and committed to a de facto relationship on 22 August 2016.

18. The applicant gave the Tribunal a copy of the delegate’s decision record. The Tribunal received additional documentary evidence including, but not limited to, individual and joint account statements, travel documents, employment documents, a marriage certificate, photographs, utility bills, and a joint letter addressing the visa criteria.

19. The documentary evidence before the Tribunal shows the applicant, a citizen of Kenya, is 29 years old. The applicant was in Australia and the holder of a temporary graduate visa that ended on 17 May 2018. The sponsor is also 29 years old and provided a copy of her visa grant notice showing she was granted an Australian permanent residence visa (subclass 187) on 18 August 2017.

    Evidence at the hearing

20. The applicant and sponsor gave evidence at the hearing. The Tribunal questioned them individually about their relationship history, the development of their relationship, their knowledge of each other’s background and family relationships, the financial social and household aspects of their relationship and the nature of their commitment to each other. The applicant and sponsor gave their evidence in a thoughtful and authentic manner. Their answers were sufficiently different that the Tribunal is satisfied that their responses were authentic from their respective knowledge rather than rehearsed. The Tribunal also questioned the applicant and sponsor jointly and observed their interaction with one another. The Tribunal observed they clearly had a close and cooperative relationship as expected from people in a genuine relationship. The Tribunal found the applicant and sponsor to be credible witnesses and accepts their oral evidence on that basis.

21. The parties gave consistent evidence that they met at high school in Kenya in around 2009 and have been dating since year 12. They both applied to study in Perth and arrived within a short period of one another in 2012 to commence the studies. They each resided in separate share accommodation and continued their relationship. They gave consistent evidence the relationship changed when the sponsor moved into her own accommodation in August 2016. This allowed the applicant and sponsor to spend all their time together without intruding on the facilities shared by the other housemates. They consider themselves to be a de facto couple from August 2016.

    Were the criteria for a de facto relationship satisfied at the time of the visa application?

22. The Tribunal has had regard to all of the circumstances of the applicant’s and sponsor’s relationship, including the r.1.09A(3) matters to which it is required to have regard, and is satisfied that the applicant and the sponsor were in a de facto relationship at the time of the visa application. In this regard, the Tribunal may have, and has had, regard to later events in relation to the earlier point in time as canvassed, as the later events tend logically to show the existence of facts that existed at the time of application: Bretag v MILGEA [1991] FCA 582 (Bretag).

23. The Tribunal considered the financial aspects of the relationship between the applicant and the sponsor were consistent with the claimed relationship. The applicant and sponsor entered a shared lease for a rental property at Madeley for 12 months from 18 August 2017. The sponsor entered into her own lease in August 2016 for a property in Wembley because her shared accommodation commitment expired. The applicant did not formally enter the lease with her in August 2016 because he was committed to continue with his shared accommodation arrangements in Wilson to where his personal bills were sent. The parties gave consistent evidence the applicant purchased white goods and furniture for the Wembley property which is supported by a furniture receipt dated 19 August 2016. The parties told the Tribunal they continued to have the individual salary/wages paid to the individual accounts and transferred money to the joint account to pay rent and bills. The sponsor’s individual bank account statement from October 2016 show various sporadic deposits from the applicant, sometimes with affection references. The parties told the Tribunal they have always casually shared their financial resources. They each transfer money to the other if it is needed. They do not loan money to each other but share their resources. Although the sponsor was responsible for paying the rent at Wembley, the applicant paid for Internet service albeit in the sponsor’s name.  They opened a joint account together in April 2018 which they use for the payment of rent and bills.

24. The parties pool their financial resources, share day-to-day household expenses and over legal obligations to each other to pay the rent.

25. The Tribunal considered the nature of the applicant and sponsor’s household is consistent with their claimed relationship. The Tribunal accepts the parties evidence the applicant stayed with the sponsor from the time she moved out of shared accommodation to Wembley in August 2016. The applicant had a key to the apartment and treated the accommodation as his own. Notwithstanding the applicant’s obligation to fulfil his rental commitment in relation to his shared accommodation in Wilson, the parties had shared living arrangements at Wembley and shared the housework from August 2016.

26. The Tribunal considered the social aspects of the applicant and sponsors relationship of the applicant and sponsors relationship are consistent with the claimed relationship. Photographs received by the Department and Tribunal show the applicant and sponsor together since 2009 the photographs show the couple together at each other’s significant events such as birthdays, graduation days, social events with friends, camping trips, religious functions and at their engagement ceremony in Nairobi in February 2019.

27. Namrata Khetia provided a statutory declaration to the Department dated 27 June 2019. She declares she has known the sponsor for over 15 years and was introduced to the applicant, identified by the sponsor as her partner, in 2012. She meets up with the applicant sponsor regularly for social dinners, lunches, movies and shopping. The sponsor is one of her closest friends in the applicant has always been kind and a genuine friend. Ms Khetia considers the applicant and sponsor are always by each other side and are happy together. She considers the relationship genuine as the applicant sponsor have been committed to each other for a long time. The Tribunal attributes weight to Ms Khetia’s declaration.

28. Ritesh Patel provided a statutory declaration dated 7 March 2019. Mr Patel has known the applicant since 2012 and met the sponsor through the applicant. He sees the couple on a regular basis and they often meet up at the applicant sponsor’s house for barbecues. Mr Patel declares he strongly believes the relationship between the applicant sponsor is genuine as he is seen nothing to suggest otherwise.

29. Mr Harshdev Bhatt provided a statutory declaration dated 8 March 2019. Mr Bhatt has known the sponsor for 17 years and met up with her again in Perth in 2012 when he was introduced to the applicant. They all meet up every weekend, are very close friends and pretty much like family. He has observed them together since he first met the applicant in 2012. He recalls the applicant organising a surprise event for the sponsor’s 25^th birthday and has considers their relationship is genuine.

30. Ms Huey Yap provided a statutory declaration dated 28 June 2019. Ms Yap declares the sponsor moved into a shared house she was living in in August 2011. The applicant would often come for dinner and stay over at times. They would share meals together and have occasional barbecues on the weekend. She continued to stay in touch with the applicant sponsor after she left the premises. Ms Yap observed the strength of their relationship and asked the sponsor why they did not move in together, to which the sponsor responded it would be against their culture and traditions. Ms Yap considers the relationship to be genuine and very long-term.

31. The Tribunal considered the nature of the applicant and sponsors commitment to each other is consistent with their claimed relationship. The Tribunal accepts that at the time of the visa application the applicant sponsor had known each other and been dating for nearly 8 years. They had been in Australia since 2012 and the relationship progressed from dating to a committed relationship by August 2016 when the sponsor moved into her own accommodation. The Tribunal accepts the parties explanation they did not announce the relationship broadly to their family until they formerly moved in together because cultural and traditional expectations would mean they would be expected to marry immediately. The Tribunal accepts the parties explanation that the family probably knew of the committed relationship for a longer time, however they were comfortable moving in with one another once they had informed the family of the commitment to one another.

32. The parties travelled to Nairobi together in January 2019 to celebrate their engagement to one another in front of their families and friends. This is evidenced by travel documents and various photographs provided to the Department. Further, as per Bretag, the applicant and sponsors subsequent marriage on 14 October 2020 tends to logically support the existence of the companionship and emotional support the parties provided to each other during the years of the relationship and demonstrates a common intention towards the long-term relationship.

33. Having taken into account all of the circumstances of the relationship including the reg 1.09A(3) matters, the Tribunal finds the applicant and sponsor, at the time of application, the applicant and sponsor have a mutual commitment to a shared life together to the exclusion of others, their relationship is genuine and continuing and they live together. The Tribunal further finds the applicant and sponsor are not related by family. The requirements of s 5CB(2)(a) – (d) are met at the time of the visa application.

    Were the additional criteria for a de facto relationship met?

34. There is no evidence that the sponsor is prohibited by cl.820.211(2B) from being a sponsoring partner and the applicant meets cl.820.211(2)(a).

35. The sponsor has turned 18 and has completed the requisite sponsorship form and the Tribunal accepts that the applicant is sponsored and so meets cl.820.211(2)(c) and, as the applicant was the holder of a substantive visa, cl.820.211(2)(d) does not apply.

36. Therefore the applicant meets cl 820.211(2).

    Had the applicant and sponsor been in the de facto relationship for at least 12 months prior to the date of the visa application?

37. Subject to the exceptions specified in r.2.03A(4) and (5), the Tribunal must also be satisfied that the applicant had been in the de facto relationship with the sponsor for at least the period of 12 months ending immediately before the date of the visa application, unless compelling and compassionate circumstances exist for the grant of the visa: r.2.03A(3).

38. The Tribunal finds the applicant sponsor were both at least 18 years old at the time of application. The Tribunal is satisfied the applicant and sponsor’s relationship had developed into a more serious relationship than a boyfriend/girlfriend type relationship when the sponsor obtained her own premises in August 2016. From August 2016 the Tribunal accepts the applicant and sponsor lived together, shared their finances, were considered to be in a committed relationship with each other by their friends, and had a committed relationship with one another.  The Tribunal finds the applicant and the sponsor were in a de facto relationship for at least 12 months prior to the date of the visa application on 16 May 2018.

39. For these reasons the Tribunal is satisfied that the applicant meets the additional criteria prescribed in reg 2.03A.

    The requirements of cl 820.211(2) continue to be met at the time of decision, in particular are the spouse criteria met at the time of decision?

    Are the applicant and sponsor validly married?

40.    If the couple are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.

41.    The Tribunal has sighted a copy of the couple’s marriage certificate and is satisfied that the applicant and the sponsor were married on 14 October 2020. The Tribunal is satisfied that there was no impediment to the couple’s marriage and is satisfied on the evidence that the couple were married to each other, under a marriage that is valid for the purposes of the Act, at the time of the decision. The Tribunal is therefore satisfied that s.5F(2)(a) was satisfied at the time of the decision.

Are the other requirements for a spousal relationship met?

1. The Tribunal considered all of the circumstances of the relationship including the matters to which it is required to have regard pursuant to r.1.15A, in considering whether the other requirements for a spousal relationship are met now. Those matters are similar to the matters previously considered by the Tribunal, as required pursuant to r.1.09A, in relation to a de facto relationship, which the Tribunal has found existed at the time of the visa application.

2. The Tribunal received a substantial number of documents supporting that the applicant sponsor continue to pool their resources to meet the shared day-to-day expenses, and that they share the financial aspects of their lives generally. The tribunal is satisfied that the financial aspects of the relationship at the time of decision continue to be consistent with the claimed relationship. The tribunal is also satisfied that the applicant and the sponsor continue to live together and share responsibility for household chores and the nature of their household continues to be consistent with their spouse relationship. The Tribunal received various photographs, holiday bookings, photographs with each other’s family and updated statutory declarations. The Tribunal is satisfied that at the time of decision the applicant and sponsor represent themselves to family and friends as being in a married relationship, their family and friends consider them to be in a married relationship and they plan and undertake social activities together consistent with their claimed relationship. The tribunal is satisfied the nature of their ongoing commitment to each other is consistent with their claimed relationship. The parties have known each other for more than 10 years. Their relationship has progressed over that time from dating to marriage. They are committed to a long-term relationship together and provide significant companionship and emotional support to each other.

3. The Tribunal is satisfied that at the time of its decision the applicant and sponsor a mutual commitment to a shared life as a married couple to the exclusion of all others, their relationship is genuine and continuing and they live together. The Tribunal is therefore satisfied that s 5F(2)(b)-(d) are satisfied at the time of decision.

4. As the requirements of s.5F(2)(a)-(d) have all been met, the Tribunal is satisfied that at the time of the decision, the applicant and the sponsor are in a married relationship and therefore the applicant is the spouse of the sponsor pursuant to s.5F of the Act and cl.820.211(2) continues to be met at the time of decision. Clause 820.221(1)(a) is therefore met.

5. Given the findings above, the appropriate courses to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 820 visa.

   DECISION

6. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

   ·cl 820.211(2) of Schedule 2 to the Regulations

   ·cl 820.221(1)(a) of Schedule 2 to the Regulations]

   ·reg 2.03A

   P. Maishman
   Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   1.09A     De facto partner and de facto relationship

   (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

   Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
   Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
   Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).