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

1. 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).

2. 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).

3. 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.

4. 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.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   ISSUES AND LAW

6. 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.

7. 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.

8. ‘Spouse’ is defined in s 5F of the Act, which 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).

9. In forming an opinion about these matters, the Tribunal must have regard to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the applicant’s and sponsor’s household and their commitments to each other, as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

10. 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 EVIDENCE

    Background

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. The sponsor contacted the Tribunal in May 2023 and indicated that she wished to withdraw the application. The note on the Tribunal file states to the effect that the sponsor said that it took too long for the Tribunal to process the application and it destroyed her relationship with her husband, who now did not want to come to Australia.

19. I asked the applicant about this at the hearing. She gave evidence to the effect that at the time of her phone call to the Tribunal, her relationship with her husband was ongoing but she had had enough of waiting for the visa. However, she said they then spoke to their families, who urged them to give the situation another chance. She then intended to go to India to spend time with her husband and potentially relodge the visa application, but the matter before the Tribunal was listed for hearing.

20. I also asked the sponsor about the sponsor’s previously expressed intention to withdraw the application. His evidence was that ‘to be honest with you, she has like… three or four years and we have in that time fought with each other and she got aggressive and maybe that’s the reason and the next day she calmed down and asked me for sorry and I said okay. It’s like normal life with husband and wife…’

21. I found the sponsor to be a credible witness. Her evidence was genuine and sincere. I also found the applicant to be a credible witness, although his evidence was not as detailed as the sponsor’s. However, on balance, having considered all of the oral and documentary evidence before the Tribunal, I am not satisfied that the relationship meets the requirements for the grant of the visa for which the applicant has applied.

    Are the parties validly married?

22. The couple submitted a marriage certificate issued by the Registry of Births, Deaths and Marriages in Queensland certifying that they were married on 24 December 2017 in Woolloongabba.

23. Accordingly, in the absence of any evidence to the contrary, I am satisfied that 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 married relationship met?

    Financial aspects of the relationship

24. The couple claim, at the time of application, to have had one joint asset, being a joint bank account in Australia. The couple claim that this account is now closed.

25. The sponsor gave evidence at the hearing that they both financially contributed to the account and withdrew funds from the account for personal use, and that she also used funds from the account for her business. She gave evidence to the effect that she closed the account approximately three to four months ago because she had too many accounts to manage and because it necessitated the applicant keeping his personal account open, which attracted fees.

26. The applicant gave evidence to the effect that he contributed to the joint account when he was in Australia only and that the sponsor had closed the account because the applicant had moved to Canada.

27. The couple did not submit any documentary evidence to support their claims. This is despite me requesting at the conclusion of the hearing that the couple submit to the Tribunal bank statements for the duration that the joint account was in effect. I provided additional time for the filing of this material, which has now lapsed.

28. In the absence of documentary evidence, I am not prepared to make findings that the couple’s claims are true. The bank statements ought to be readily available to the couple (and no claims were made that it was not reasonable to provide the bank statements). Without the bank statements, I cannot verify the existence of the account or how it was used.

29. The sponsor gave evidence to the effect that she owns and operates a business, which is held in the name of a family trust of which her and her husband are the beneficiaries. She also gave evidence that the trust owns a car and has a loan for the car.

30. Following the hearing, the sponsor provided some documentation to support these claims, including:

    a.a family trust deed dated December 2021 in which she is the trustee and she and the applicant are the beneficiaries;

    b.a vehicle purchase contract, wherein the trustee of the family trust is the customer;

    c.a finance estimate for a business vehicle loan addressed to ‘the trust / the sponsor’;

    d.two receipts for payments for the vehicle, which identifies the payor as the sponsor’s business as trustee for the trust;

    e.a tax statement for the trust.

31. I accept the sponsor’s evidence about the trust, the business, and the car, as it is corroborated by documentary evidence. However, I find that the business and the car are not joint assets, and the car loan is not a joint liability, as they are held by the trust, and not the couple. The applicant is only a beneficiary to the trust and does not have a legal interest in the property or obligations under the loan.

32. The sponsor gave evidence to the effect that her husband has not provided her with financial support. She gave evidence that she has provided occasional financial support to him by funds transfer, that she paid for the visa application, that she paid for expenses when they were in India because the applicant was unemployed, and that she paid for their honeymoon.

33. The applicant gave evidence to the effect that he provided financial support to the sponsor in India. He said that he always gave her cash in India. He also gave evidence that the sponsor has provided him with financial support in cash or electronic funds transfers into the applicant’s personal Australian bank account.

34. At the conclusion of the hearing, I also requested any evidence of electronic funds transfers from the sponsor to the applicant. This evidence was not submitted and again, the timeframe for its provision has passed.

35. Having regard to the matters set out above, I find that at the material times, the nature of the couple’s finances were not indicative of a married relationship, as defined in the Act. In the absence of corroborating evidence, I find that the couple did and do not have joint assets and joint liabilities, have not pooled their financial resources ,and have not shared day-to-day household expenses. The couple do not claim to owe any legal obligations to the other party, and I make a finding accordingly.

    Nature of the household

36. The applicant and the sponsor gave evidence to the effect that they briefly lived together in Australia and that when they were both in India, they stayed at the applicant’s family home. The sponsor gave evidence that in Australia, they shared the cooking but in India, she did the cooking and cleaning and helped the applicant’s mother with the housework, which is consistent with cultural norms.

37. I note that the couple only lived together in Australia very briefly and that they have also spent limited time cohabitating in India. According to the sponsor’s movement records, she was overseas for approximately three months in 2018 and for approximately five months in 2019. They have not cohabitated since this time.

38. Once again, there is an absence of corroborating evidence to support the couple’s claims. Aside from the couple’s oral testimony and some photographs of the couple that appear to have been taken in India, there is little evidence to support their claims of cohabitation.

39. I note that the sponsor gave evidence that she had a room mate in Brisbane and that the couple gave evidence that members of the applicant’s family also lived in the family home in India. However, no written statements were provided by these people, and they were not called as witnesses. Again, I note that I gave the couple the opportunity to submit statements from friends and family following the hearing, and none were provided.

40. In these circumstances, I find that the couple’s living arrangements and the sharing of housework is not consistent with a couple in a married relationship, as defined in the Act. However, I give this little weight in my overall assessment of the relationship as I acknowledge that it is difficult to establish a joint household when the parties live in different countries.

41. Any joint responsibility for care and support of children is not applicable.

    Social aspects of the relationship

42. The applicant and the sponsor gave evidence that their friends and family are aware of their marriage. I note that both weddings were attended by friends and family, and that numerous photographs taken at the weddings have been submitted to the Tribunal.

43. However, aside from the weddings, there is a dearth of evidence relating to the social aspects of the relationship. The primary evidence before the Tribunal includes photographs (primarily ‘selfies’) of the couple, a few social media posts, two Form 888 – Statutory Declarations provided by a friend of the applicant and a friend of the sponsor, and a further signed statement provided by the sponsor’s friend.

44. No evidence has been submitted from the applicant and the sponsor’s respective families. Only two Form 888s have been provided, and they provide little insight into the relationship between the couple.

45. At the conclusion of the hearing, I specifically requested additional statements from friends and family members regarding the couple’s relationship. Aside from the further statement from the sponsor’s friend, none were provided and the timeframe for providing this material has lapsed.

46. In the absence of compelling evidence, I find that the parties do not represent themselves to other people as being married to each other, that their friends and acquaintances do not consider the relationship to be genuine and continuing, and that they couple do not plan and undertake joint social activities. The social aspects of the relationship are not consistent with a married relationship, as defined in the Act.

    Nature of persons’ commitment to each other

47. The applicant and the sponsor have been in a relationship for approximately six years. They have only lived together for approximately eight months in that time.

48. Overall, I consider that the applicant and the sponsor lacked detailed insight into each other’s lives. They also provided inconsistent evidence about material aspects of their respective lives. I give this significant weight in my assessment of the relationship. For example:

    a.The sponsor gave evidence that the applicant was working in Canada as a chef and that he had also done some cleaning jobs. The applicant’s evidence was to the effect that he had only worked as a chef.

    b.The sponsor gave evidence to the Tribunal to the effect that she did not ask detailed questions about the applicant’s career because she is sensitive to his feelings and did not want him to become depressed that she was earning more money than him.

    c.The sponsor gave evidence that she thought the applicant lived in British Columbia in a place called ‘Bremden’. The applicant gave evidence that he lived in Vancouver.

    d.The sponsor’s evidence about the applicant’s living and working arrangements in Canada were vague and uncertain.

    e.The applicant gave evidence that the sponsor runs a coffee shop and that she had employees, but he did not know how many people she employed.

    f.The sponsor gave evidence that she has two nephews, aged 16 and 4.5. The applicant gave evidence that the sponsor’s nephews were aged approximately 10 and approximately 1 or 2 years old.

    g.The sponsor gave evidence that the applicant had recently moved back to India permanently because he was ‘sick of staying here… when nothing is working for you, you get fed up, so he is taking a break right now… things were getting expensive and out of hand’. The applicant gave evidence to the effect that he had purchased a one-way ticket to India but he only intended to stay in India for a couple of weeks or a month before returning to Canada, and that he was in India for treatment for some issues with his legs.

    h.The sponsor gave evidence to the effect that the applicant had previously said that he was going to visit the United Kingdom and they made plans to meet there in January 2023. However, because of issues relating to the sponsor’s business and car, she was unable to go. The applicant gave evidence to the effect that they had not had plans since the pandemic to see each other because his financial situation was bad, and that they had not planned to meet in any other countries.

    i.The sponsor gave evidence to the effect that the applicant had travelled to either Antarctica or Alaska recently and that he intended to take her there. The applicant gave evidence to the effect that he had only visited the United States, Canada, Dubai, and India since he had left Australia.

1. At the conclusion of the hearing, I asked the couple to submit Whatsapp records or records of communications between the applicant and the sponsor from May 2023 to present.  In response, the sponsor submitted to the Tribunal screenshots from her phone indicating that she had had the following phone calls with the applicant: 9 minutes on 9 September 2023; 41 seconds on 6 September 2023; 11 minutes on 5 September 2023; 21 minutes on 27 August 2023; and 14 minutes on 21 August 2023. No other evidence was provided. I note that the Tribunal’s hearing invitation was issued on 21 August 2023. I view the absence of evidence of regular and ongoing communications prior to the Tribunal’s hearing invitation adversely in my assessment of the relationship.

2. The applicant and the sponsor gave oral evidence of the companionship and emotional support they draw from each other. However, their evidence was generic and superficial. It is also not supported by the other evidence before the Tribunal.

3. I draw an adverse inference from the applicant’s failure to attend the first hearing of this matter. I also draw an adverse inference from his failure to provide documentary evidence to support the couple’s claims, as specifically requested by the Tribunal at the conclusion of the hearing. I consider that these matters are indicative of a lack of commitment on the part of the applicant. I also note that the applicant did not attend the sponsor’s cousin’s wedding in India which is again, indicative of a lack of commitment.

4. The sponsor gave evidence to the effect that she has suffered from two miscarriages, one in Australia and one in India and she provided some supporting medical evidence. I accept this as true and give it some weight in my assessment of the couple’s commitment to each other. However, I find that the commitment demonstrated by the couple’s attempts to have a child together are outweighed by other aspects of the relationship summarised above, which are indicative of a lack of commitment, particularly on the part of the applicant.

5. Ultimately, I find that the couple do not draw companionship and emotional support commensurate with people in a committed relationship and do not see the relationship as long-term. I find that the nature of the couple’s commitment is not indicative of a married relationship, as defined in the Act.

   Conclusion

6. I have carefully considered all the evidence before me and on balance, I am not satisfied that the relationship between the applicant and the sponsor meets the requirements of the section 5F(2)(b) to (d) of the Act. I find that, at the material times, the couple have not had a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship is not genuine and continuing and the couple do not live together and live separately and apart on a permanent basis.

7. Therefore, the applicant does not meet cl 309.211(2)(b) and cl 309.221(1)(a) of Schedule 2 to the Regulations

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

   DECISION

9. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

   Tegen Downes
   Member

   
   

   ATTACHMENT  - Extract from Migration Regulations 1994

   1.15ASpouse

   (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).