Kaur (Migration) - [2023] AATA 3823

Kaur (Migration) [2023] AATA 3823 (16 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Malkiat Kaur
VISA APPLICANT:  Mr Dilbag Singh
CASE NUMBER:  1920163
DIBP REFERENCE(S):  BCC2018/395105
MEMBER:Tegen Downes
DATE:16 October 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 16 October 2023 at 3:20pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – absence of documentary evidence – nature of the household – social aspects – absence of compelling evidence – nature of the commitment – absence of evidence of regular and ongoing communications – applicant’s failure to attend the first hearing – failure to attend the sponsor’s cousin’s wedding in India – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 May 2019 to refuse to grant the visa applicant (the applicant) a Partner (Provisional) (Class UF) visa under section 65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 24 January 2018 on the basis of his relationship with his sponsor, the review applicant (the sponsor). At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy

clause 309.211(2) of Schedule 2 to the Regulations. The delegate considered that the evidence and information provided was insufficient to satisfy them that the applicant was the ‘spouse’ of the sponsor.
The sponsor appeared before the Tribunal on 5 September 2023 to give evidence and present arguments. The applicant failed to appear at the hearing and accordingly, the hearing was adjourned to 25 September 2023. On that day, both the applicant (by Microsoft Teams) and the sponsor appeared to give oral evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
ISSUES AND LAW
This review application relates to an offshore application for a provisional partner visa to enable the visa applicant to come to Australia on a temporary basis.
The issue in this review application is whether, at the time the visa application was made, and at the time of this decision, the visa applicant was and is the spouse of an Australian permanent resident, for the purposes of cl 309.211(2)(b) and cl 309.221(1)(a) of Schedule 2 to the Regulations.
‘Spouse’ is defined in s 5F of the Act, which provides that a person is the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaur (Migration)

Details

AGLC: Kaur (Migration) [2023] AATA 3823
Case: [2023] AATA 3823
Decision Date: 16 October 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa by an Indian national, who claimed to be in a married relationship with an Australian permanent resident. The applicant had a history of visa refusals and previous unsuccessful reviews. The Tribunal was required to determine whether the applicant and the sponsor were in a genuine spousal relationship at the time of the visa application.

The legal issues before the Tribunal included assessing the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the commitment between the applicant and the sponsor. The Tribunal was also required to consider all relevant evidence, including events occurring after the visa application, if such evidence logically assisted in determining the existence or non-existence of facts relevant to the genuineness of the relationship at the time of application.

The Tribunal affirmed the decision not to grant the visa. The Tribunal found a lack of compelling evidence regarding the financial aspects, the nature of the household, the social aspects, and the nature of the commitment. Specifically, there was an absence of documentary evidence for financial pooling, limited evidence of shared living arrangements or household responsibilities, and insufficient evidence of regular and ongoing communication or joint social activities. The applicant's failure to attend the first hearing and his absence from his sponsor's cousin's wedding in India were also noted as significant factors. The Tribunal concluded that the applicant had not satisfied the criteria for the grant of the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined: Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139.CONSIDERATION OF CLAIMS AND EVIDENCEBackground The applicant is a 36-year-old man from India. He is once divorced. He claims to be in a married relationship with the sponsor, a 43-year-old woman from India who became an Australian permanent resident in July 2016. The applicant first came to Australia in October 2007 on a Vocational Education and Training Sector visa. He held successive Vocational Education and Training Sector visas until he applied for a Temporary Graduate visa, which was refused in 2012 on the ground that he had provided fraudulent documents in relation to the application. The applicant sought a review of that decision before the Tribunal but ultimately withdrew his application. Before the withdrawal, the applicant applied for an onshore partner visa on the basis of his relationship with his ex-wife, to whom he was married between May 2013 and October 2015. That visa was refused. The applicant also sought a review of that decision before the Tribunal. The Tribunal (differently constituted) affirmed the delegate’s decision. The applicant sought judicial review of the Tribunal’s decision, but his application was dismissed by the Federal Circuit Court of Australia on 30 November 2017. According to the documentation submitted with the visa application, the applicant and the sponsor claim to have met on 14 October 2017 and married on 24 December 2017. The applicant then departed Australia on 27 December 2017, on the expiration of his bridging visa. Since his departure, he has lived in India and Canada. The sponsor gave evidence at the hearing that their marriage was arranged by her family. Before the couple met, the applicant was living in Melbourne and the sponsor was living in Brisbane. The couple gave evidence to the effect that they spoke over the phone for a few months before they agreed to meet. They then liked each other and agreed to become engaged and marry. They held a small wedding in Brisbane. The sponsor gave evidence that approximately 30 to 40 people attended, two of whom were the applicant’s friends from Melbourne and the balance were the sponsor’s friends. They then held a large wedding in India the following year, which was attended by approximately 300 guests from both sides. Photographs from both weddings are before the Tribunal. The sponsor gave evidence that since the applicant departed Australia, she has seen him on four occasions, once in 2018 (when they were married) and thrice in 2019. She gave evidence that she has travelled to India twice since then, once for her cousin’s wedding in 2020 and once in October 2022 to visit her ill mother. The sponsor did not see her husband on either occasion as he was living in Canada. The sponsor gave evidence that when she was in India in 2018 and 2019, she stayed with her husband’s family.

Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.Tegen DownesMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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