Joshi (Migration)

[2019] AATA 2671

Joshi (Migration) [2019] AATA 2671 (13 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pinka Joshi

CASE NUMBER:  1804269

HOME AFFAIRS REFERENCE(S):           CLF2013/258518

MEMBER:Kira Raif

DATE:13 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 13 May 2019 at 1:46pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – no response to s 359A letter – not entitled to appear before the Tribunal – genuine spousal relationship – immigration history – student visa cancelled – timing of Partner visa application – credibility issues – paternity of claimed child – birth certificate altered – DNA testing refused – sponsor failed to attend hearing – sponsor’s social media activity – knowledge of each other’s lives – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359A, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

CASES
Hasran v MIAC [2010] FCAFC 40
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 is a national of India, born in August 1990. He entered Australia on a Student visa in 2008 and that visa was subsequently cancelled, with the cancellation affirmed by the MRT. After the Tribunal decision, the applicant made an application for another substantive visa, which was also refused and affirmed by the Tribunal. Within a short time of that decision, the applicant and the sponsor married and the applicant applied for the Partner visa on 21 October 2013 on the basis of his relationship with his sponsor.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant sought review of the Tribunal’s decision. In July 2016 the Tribunal affirmed the delegate’s decision. The applicant sought judicial review and the matter was remitted for reconsideration by the court.

4. O 5 March 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide comments on information that it considered would be a reason or part of the reason for affirming the decision under review in writing. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 19 March 2019, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

5. The applicant sought an extension of time to provide his comments and it was granted. The Tribunal wrote to the applicant on 19 March 2019 informing him that his comments or response were now due by 2 April 2019. The applicant did not provide his comments or response within that period. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments. At the time of this decision, the applicant has not provided any further evidence or comments to the Tribunal.

   Relevant law

6. At the time the application was made, 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).

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. The applicant provided with his application a copy of the marriage certificate which shows the applicant and the sponsor registered marriage in September 2013. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied 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 Tribunal has some concerns about the applicant’s immigration history. As noted above, the applicant entered Australia on a Student visa which was subsequently cancelled. Only once the applicant was unsuccessful in the review of the cancellation, the applicant determined that he cannot return to India and made another visa application in Australia. He was unsuccessful in that application also. Within a short time of that decision being affirmed by the Tribunal, the applicant married the sponsor and made the application for the Partner visa. The applicant’s immigration history and the timing of these applications indicate that the applicant has a strong desire to remain in Australia. The Tribunal accepts that a genuine relationship is not inconsistent with a desire to remain in Australia and the applicant’s apparent intention to establish residence in Australia is not indicative of the relationship not being a genuine one. However, the applicant’s immigration history does bring into question the applicant’s motivations for entering this relationship and, importantly, the applicant’s credibility. Nevertheless, the Tribunal’s consideration with respect to all aspects of the relationship is set out below.

11. The Tribunal’s has a number of concerns about aspects of the relationship.  First, there is the issue of the applicant’s paternity of the claimed child from the relationship. The primary decision record indicates that the child’s birth certificate was altered in October 2013, nine months after the child’s birth and less than a week before the applicant made his Partner visa application. The primary decision record indicates that the applicant was unable to explain the nature of the amendment of the birth certificate. Significantly, the applicant also told the delegate that he was not living with the sponsor when the child was born, did not attend the hospital when the child was born and did not live with the sponsor and the child after the child was discharged from the hospital. The applicant claims to have started living with the sponsor in September 2013, after the marriage, and when the child was about nine months old (thus negating the presumption of paternity arising from the relationship). The primary decision record indicates that the applicant was unable to explain why the child had the mother’s surname and not his and he was also unable to explain the meaning of the child’s name. These are matters that the applicant may have been expected to have good knowledge of if he was the father of the child as he claims, and if he had meaningful conversations with the sponsor about the child.

12. The Tribunal considers it significant that both the delegate and the Tribunal gave the applicant the opportunity to prove paternity through DNA testing. The applicant had not arranged DNA testing before the primary refusal and explained to the first Tribunal that the sponsor was against the test. There is little probative evidence from the sponsor to support that claim at present and the applicant has not responded to the present Tribunal’s invitation to undertake paternity testing. The Tribunal is mindful that the applicant and the sponsor were put on notice that the applicant’s paternity was at issue. DNA testing was quite significant in these circumstances. The Tribunal is not satisfied that the DNA testing could not have been arranged and the Tribunal is of the view that the applicant’s refusal to confirm the child’s paternity through DNA testing, together with the concerns noted above, offers a strong indication that the applicant is not the father of the child. The Tribunal is not satisfied that the applicant is the father of the child. The Tribunal has formed the view that the applicant and the sponsor had deliberately misled the delegate and the Tribunal in making this claim in order to strengthen the applicant’s visa application. The Tribunal has formed the view that they are not witnesses of credibility and that their evidence concerning the nature of the relationship is unreliable.

13. The second issue of concern for the Tribunal is the sponsor’s failure to attend the interview with the delegate and the first Tribunal, as well as the applicant’s own failure to attend the first Tribunal hearing. While the Tribunal acknowledges that the applicant sought to explain his non-appearance through medical evidence, the applicant was put on notice that the presented evidence was inadequate. The applicant also failed to engage meaningfully with the present Tribunal. The applicant’s and the sponsor’s reluctance to be questioned about their relationship and to have their evidence tested is of significant concern to the Tribunal. In the Tribunal’s view, it offers a strong indication that the applicant and the sponsor do not maintain a genuine spousal relationship and that their evidence is unreliable.

14. The Tribunal also notes that the Departmental inquiry of the sponsor’s Facebook account shows her interactions with another man. These show what appears to be an intimate relationship with a person other than the applicant. The applicant was invited to provide his comments on that information but he has not done so. That information, together with the concerns about the applicant’s paternity of the child, suggests to the Tribunal that the applicant’s relationship with the sponsor is not to the exclusion of all others and may not be mutually committed.

15. The Departmental records show there were significant inconsistencies in the applicant’s and sponsor’s evidence to the delegate during an interview conducted in 2015. The applicant was invited to comment on that information pursuant to s. 359A of the Act but did not provide his comments or response. These are noted below.

    a.    The delegate asked where the applicant was when the sponsor gave birth to her son Jahkai. The applicant said he was in Shepparton working and he gave the sponsor a bunch of flowers. The sponsor said the applicant was at his friend’s place in Blacktown and he gave her a teddy. The applicant said the baby was born around 6.30 pm. The sponsor said the baby was born at 11 pm or midnight.

    b.    The applicant said the baby’s name was chosen by the sponsor, her grandmother and her boyfriend. The sponsor said it was chosen by her and the applicant.

    c.    The applicant said he applied for the child’s birth certificate about 3-4 months after the child’s birth. He said he has not made any amendments ever since and did not know what amendments are mentioned in the birth certificate. The sponsor also said no amendments had been made. The birth certificate shows that amendments were made on 16 October 2013.

    d.    The applicant said he and the sponsor started living together 7 days after the marriage. The sponsor could not recall when the couple started living together.

    e.    The applicant said he and the sponsor were introduced by Alex, who is married to an Indian man. The sponsor said they were introduced by Jess who is single and was never married.

    f.   The applicant said that the household consists of him and the sponsor, their children and his friend who would move out in a few weeks’ time. The sponsor said that the friend has already moved out. The applicant stated that his friend uses one bedroom and he, the sponsor and the children use the other bedroom. The sponsor said that the children use one bedroom and she and the applicant use the other bedroom. The applicant said there is one bed for two children. The sponsor said the children have separate beds.

    g.    The applicant referred to having a built-in wardrobe and a portable wardrobe in the bedroom. The sponsor said there is no built-in and only a movable wardrobe in the bedroom.

    h.    The applicant stated that he earned $1000 a week and the sponsor receives $450 from Centrelink. The sponsor stated that she receives $630 one week and $330 another week because of some debts.

16. The Tribunal considers such inconsistences to be significant because they relate to quite important aspects of the relationship, such as cohabitation and arrangements in relation to the child. In the Tribunal’s view, if the applicant and the sponsor did establish a joint household, they may be expected to know, and consistently state, who else lives with them, what bedrooms are being used, what furniture they have in their bedroom and their children’s sleeping arrangements. Similarly, if the couple pooled their finances, they may be expected to be aware of each other’s income. These inconsistencies suggest to the Tribunal that the couple have simply fabricated the information about aspects of their relationship to assist the applicant with his visa application.

17. There is no evidence before the Tribunal that at the time of this decision, the applicant and the sponsor have joint ownership of assets or joint liabilities. There is no evidence that they poor financial resources or have legal obligations with respect to each other. There is no evidence that they share day to day household expenses. There is no evidence that at the time of this decision, the applicant and the sponsor live together or that they have established a joint household. The Tribunal is not satisfied on the evidence before it that they share housework. There is no evidence that they have joint responsibilities for care and support of the child.

18. The applicant presented with his application some evidence of the relationship being socially recognised and of joint social activities. However, there is no evidence before the Tribunal of the social recognition of the relationship or of joint social activities at present. There is no evidence that at the time of this decision, the applicant and the sponsor represent themselves to others as being married. There is little evidence that at present, others believe the relationship to be a genuine one. There is no evidence that the couple plan and undertake joint social activities.

19. The parties claim to have been in a relationship for a lengthy period of close to eight years. Some documentary evidence of the relationship has been submitted, but, as noted above, the parties have not made themselves available to have that evidence tested. There is little evidence that the applicant and the sponsor maintain their relationship or that they provide each other with companionship and emotional support. There is no evidence that they presently view their relationship as a long term one. There is no evidence that the applicant provides any support to the sponsor with the children’s upbringing.

20. The Tribunal has found many aspects of this relationship, and the evidence, problematic, as noted above and the Tribunal has significant concerns about the applicant’s credibility. The Tribunal also finds that the applicant has not presented any probative evidence to satisfy the Tribunal that at the time of this decision, the spousal relationship continues. On the evidence before it the Tribunal is not satisfied that at present, the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied the applicant and the sponsor live together or not separately and apart on a permanent basis. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision.

21. There is no evidence that the applicant meets any of the exceptions in cl. 820.211. In particular, the Tribunal is not satisfied that the applicant is the father of the child and the Tribunal is not satisfied that the applicant has any parental responsivities in relation to the child, or any other children. There is no evidence that the applicant has suffered family violence and the sponsor is alive. Therefore the applicant does not meet cl.820.221.

    Conclusion

22. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Kira Raif
    Senior Member