Kashyap (Migration)

[2019] AATA 3265

Kashyap (Migration) [2019] AATA 3265 (28 March 2019)

WRITTEN STATEMENT OF DECISION

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Unita Kashyap

CASE NUMBER:  1802171

DIBP REFERENCE(S):  BCC2016/1674904

MEMBER:Nicholas McGowan

DATE:28 March 2019

PLACE OF DECISION:  Melbourne

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – age difference – knowledge of each other – recognition of relationship – migration history – past delinquency – decision under review remitted

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

DECISION:

This Tribunal remits this Partner (Temporary) (Class UK) visa application, with the direction the applicant meets cl.820.211(2) and cl.820.221 of Schedule 2 to the Regulations.

REVIEW

1. The applicant is a 33 year old Indian woman, who married 66 year old Edward Sardon who is an Australian citizen born in Monfalcone, Italy. They have each been married previously. They married each other on 9 September 2015 in Point Cook, Victoria.

2. On 9 May 2016 the applicant applied for a temporary partner visa on the basis of her relationship with her husband. On 12 January 2018 that application was refused by a delegate of the immigration minister.

3. On 29 January 2018, the applicant appealed her visa refusal to this tribunal. On 28 March 2019 a public hearing was conducted by this tribunal where the applicant and her husband attended and provided oral evidence. This case has been to this tribunal previously, last time before Member Lo Piccolo in consideration of the Schedule 3 criteria, for which the waiver to that criterion was applied.

4. The applicant provided candid and spontaneous oral evidence during the public hearing, as did her husband. They clearly had a significant knowledge of each other consistent with a married couple living together. The applicant’s husband spoke with emotion and adoration for his wife. The applicant spoke clearly, was logical and plausible in what she said, and demonstrated why and how she became attached emotionally to her husband. The applicant’s husband attributes his being alive to her as she has nursed and cared for him. It is evident they continue to face health challenges together, a factor corroborated by the documentary evidence provided by them during the public hearing.

5. This tribunal explored the extent to which immediate family either supported, or do not, their relationship because of their age difference. This has been a significant factor for those around them, and even in their daily interactions with others, a fact the applicant and her husband freely acknowledge, discussed and lament because of the apparent prejudice perceived by them (because of their age difference). It is clear to this tribunal that some immediate family, including the husband’s sister, are supportive, while others including, the applicant’s husband’s own children are less so. Regardless, it is clear there is broad-based recognition of their relationship, and in this case, over a sustained period.

6. Importantly, this tribunal was satisfied by the strength of the applicant and her husband’s consistent and at times emotional oral evidence, supported by the documentary evidence, all of which fairly considered, favours a conclusion that the parties are in a relationship as envisaged by the Act and regulations for the purposes granting a temporary partner visa.

7. Discussed at the public hearing were the applicant and her husband’s plans for the future, including whether the parties anticipated having a family of their own.

8. This tribunal discussed the applicant and her husband’s relationship with the husband’s grandchild, including their weekly care of him, particularly within the context of their joint care and in exploration of the nature of their household. Discussed too, were their daily routines and simply put, who does what at home, and whether they care for and look after one another. Their detailed, spontaneous and consistent oral evidence throughout the hearing strongly supports their claims they do.

9. A feature of the applicant’s refusal decision from the immigration department is the applicant’s migration history. In the view of this tribunal, past delinquency, of its own, does not necessarily adversely impact an application. This tribunal has carefully considered these aspects against all the other evidence which speaks to the relationship and arrived at a decision which it believes is fair to the applicant given this tribunal is satisfied the applicant meets the criteria for the grant of the temporary partner visa.

   FINDINGS

10. Having considered each of the r.1.15A(3) matters, and after assessing the parties relationship against s.5F(2)(a)-(d), this tribunal is satisfied the applicant and her sponsor are: ‘validly’ married (folio 35); have a mutual commitment to a shared life to the exclusion of all others; are, in a relationship which is genuine and continuing; and live together.

11. Given the above, this tribunal has been satisfied that at the time of application the applicant met cl.820.211(2). As the applicant continues to meet those criteria, cl.820.221 (the ‘time of decision’ criteria) is also met.

    
    Statement made on 28 March 2019 at 8:22am