Jaswal (Migration)

[2019] AATA 1548

Jaswal (Migration) [2019] AATA 1548 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sunny Jaswal

CASE NUMBER:  1621548

HOME AFFAIRS REFERENCE:                CLF2014/103420

MEMBER:Rosa Gagliardi

DATE:01 March 2019

PLACE OF DECISION:  Melbourne

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 of Schedule 2 to the Regulations; and

·cl.820.221 of Schedule 2 to the Regulations.

Statement made on 01 March 2019 at 3:38pm

CATCHWORDS
MIGRATION  – Partner (Temporary) (Class UK) visa – subclass 820 – consistency of evidence– sufficient evidence of genuine and continuing spousal relationship – definition of ‘Spouse’ –decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65, 359
Migration Regulations 1994, r 1.15, Schedule 2, cls 820.211, 820.221

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 Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 July 2014 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 (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 there was insufficient evidence to demonstrate that the parties were in a genuine and continuing spousal relationship as defined.

4. The applicant appeared before the Tribunal on 27 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his putative spouse,

   
   

   Ms Rose Stivali.  In addition, the sponsor’s Goddaughter, Ms Alicia Dattiol Benetti, gave evidence, as did Rosalie Daniele who is a previous landlord and friend of the parties.  Tarun Pal gave evidence over the phone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DE FACTO (cl.820.211(2)(a), (3)(e), (4)(e), (5)(e), (6)(d), cl.820.221)

   Whether the parties are in a spouse or de facto relationship

7. Clauses 820.211(2)(a) and 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 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 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?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. 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).

   Background

10. The applicant’s migration history indicated to the Tribunal that the applicant was highly motivated to remain in Australia and was initially concerned that his sole motivation for entering the relationship with the sponsor was a determination to maintain residence in Australia.  The Tribunal finds on closer examination, however, that the evidence points to more complex set of circumstances leading to his continued presence in Australia.  It is argued that the applicant was previously represented by S & S Migration “who destroyed every bit of Sunny’s future”.  It is alleged that S & S Migration were involved in 1000 fraudulent visa applications in which the agents fled Australia three days after immigration and federal agents raided their home in October 2011.  The applicant submits that he did not attempt to just lodge any application in order to regularise his status in Australia; the various applications made were due to his previous migration agenta S & S Migration, who have been known to put other clients in a similar situation – a matter that was publicised at the time. 

11. The Tribunal accepts that it would not be reasonable to attribute significant adverse weight to the applicant’s previous applications to remain in Australia, although the Tribunal is not in a position to make a finding about the extent to which the applicant may have been complicit in any futile applications. 

12. The Courts have also found that a decision maker has to allow for applicants who might enter a relationship for mixed motivations. While an applicant may have partly entered a relationship to secure a migration outcome in Australia, it does not exclude the possibility that the relationship is genuine and continuing. In this case, the evidence shows that, even if there were mixed motivations for the applicant in entering the relationship, the parties’ financial arrangements, the nature of the household, the social recognition afforded to the parties’ relationship, and the nature of the parties’ commitment to one another, are entirely consistent with a spousal relationship as defined in s.5F.

13. In terms of the inception of the relationship, it has been argued that the parties met on 6 April 2013, at a restaurant when the sponsor was out with friends.  They started speaking and joined tables and eventually exchanged numbers and then they began seeing each other.  This evidence was supported by witnesses at hearing.

14. The sponsor has been previously married and has several children.  The applicant has never been married.  The parties married on 8 May 2014.

    Are the other requirements for a spouse relationship met?

15. The Tribunal would like to acknowledge the detailed time lines and supporting evidence provided by the migration agent that had not been available to the Department to assist make a decision.  The material submitted is consistent and comprehensive and has played a significant role in the outcome of this decision.

    The financial aspects of the relationship

16. The parties maintain separate every day accounts but have accounts to which they mutually contribute.  They also have a joint account.  The applicant is a forklift driver and the sponsor is working in the public sector. 

17. At the time of application the parties had few major assets but over time the situation has changed and both parties are now contributing payments toward a home.  Evidence of such savings have been submitted.  The sponsor has arranged for a loan and it is in her name as the applicant is unable to obtain finance until he has a permanent visa.  It is argued that when the applicant’s visa status changes then it is essential that both parties continue to contribute (as they are doing so now) because neither of the parties would be in a position to cover all the expenses of a loan on their own.  The Tribunal accepts that the parties have a shared financial goal to purchase a home.

18. The parties have submitted to the Tribunal details of all their accounts in the interests of transparency.  The Tribunal finds that the parties’ financial arrangements are not inconsistent with two persons who are in a genuine and continuing spousal relationship.

    The nature of the household

19. The Tribunal notes that the evidence submitted outlines the timeline of the parties’ relationship supported by evidence demonstrating they have shared a home consistently since their marriage in 2014.  Importantly, the parties who have given evidence have attested to the parties sharing a household over the years as spouses.  Such evidence includes, utility accounts in both names, including: home policy for their joint residence at Taylors Hill; individual tax returns; lease renewal and rent in both names for Taylors Hill; electricity accounts at same residence and in joint names; medical correspondence in joint names; other tenancy documentation; other utility accounts up until recent times; vehicle registration documentation; and other banking correspondence.

20. In addition the parties have submitted evidence of accommodation for a beach holiday that they have shared together.

21. The Tribunal also notes that the transaction listings for the bank accounts are consistent with the parties sharing a household together, including payment of every day necessities and ongoing household commitments.

    Social aspects of the relationship

22. The Tribunal places weight on the extensive evidence submitted by third parties who socialise and have known the couple for lengthy periods, attesting to the genuine and continuing nature of the relationship.  The Tribunal has had regard to the photos of the parties together and with family and other friends who regularly socialise together. 

23. The Tribunal also places significant weight on the fact that the applicant’s mother came from India to visit and stay with the couple.  The applicant’s mother has submitted an affidavit dated 12 October 2018, declaring that she was aware of her son’s marriage to the sponsor and that she had sent the parties her blessing on their marriage on 8 May 2014.  She confirms that she has lived with the sponsor and applicant in Australia and gave them her blessings.  The Tribunal is satisfied, therefore, that the parties’ relationship is recognised by the applicant’s family generally in India, and that the relationship is supported by them, even though the sponsor is somewhat older than the applicant and even though the applicant has married outside his cultural background. 

24. The parties at hearing stated that they also wished to visit India at some point to spend time with the rest of the applicant’s family.  They had also provided evidence of planning a trip to the United States together.

25. The sponsor has an adult son, Patrick, who has a mild disability and is living at home with her and the applicant.  Patrick too has provided a statutory declaration dated 11 October 2018, in support of the relationship, declaring awareness of the relationship and commenting that he was unable to attend the wedding due to his health at the time.  Patrick confirms he lives with the parties and that his mother derives happiness from the marriage.  Patrick also confirms that the applicant plays a therapeutic role in his life and accompanied him to the doctor.  In addition, Patrick refers to the social activities he enjoys with his mother and the applicant such as attending movies and partaking of pizza nights at home.  The Tribunal places weight on this statement.

26. The sponsor has another son, Scott, who is living with the sponsor’s mother.  The Tribunal probed the sponsor about why there was no evidence that her mother or eldest son had provided an opinion about the nature of the relationship.  The sponsor explained that she and her mother were estranged for various reasons and that the issues involving property and other financial matters existed prior to her marriage to the applicant.  In other words, the sponsor’s estrangement was not related to her marriage.  Their distance had pre-dated the sponsor’s relationship with the applicant.  In terms of the sponsor’s son, he had been distanced from his mother by an uncle who had influenced him in a way that the sponsor did not approve of, even though she was attempting to get closer to Scott.  The Tribunal found this evidence realistic and plausible.

27. In addition the parties have submitted several years’ worth of tax returns declaring each other as their spouse.  The Tribunal places some weight on this evidence.

28. The Tribunal put to the parties under s.359AA of the Migration Act that the sponsor had been listed as “single” under her Centrelink records. The sponsor stated that she personally did not receive any Centrelink payments and that it was her son, Patrick, who received a disability payment. As such she had never thought to update her details but has done so now. The Tribunal accepts the sponsor’s explanation in this regard.

29. The Tribunal accepts from the third party statements that the parties plan and undertake joint social activities together, including with the sponsor’s son, Patrick, as a family.

    Nature of persons’ commitment to one another

30. The parties spoke realistically of the support provided to the sponsor by the applicant in dealing with her family situation, in particular Patrick’s needs and the Tribunal accepts that the parties provide one another with companionship and emotional support.  The Tribunal considers that in particular, the evidence clearly demonstrates that the parties’ relationship has been continuous and long standing and that the parties themselves see the relationship as long-term.  The Tribunal is also satisfied that the evidence strongly indicates that the parties are living together and not apart on a permanent basis, and that they have a shared life to the exclusion of others and that the relationship is genuine and continuing.

31. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at time of this decision.

32. 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 820 visa.

    DECISION

33. 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 of Schedule 2 to the Regulations; and

    ·cl.820.221 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    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).