Kaur (Migration)

[2022] AATA 4537

Kaur (Migration) [2022] AATA 4537 (15 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nimratpal Kaur

CASE NUMBER:  1926256

HOME AFFAIRS REFERENCE(S): BCC2016/3859909 BCC2019/6332239

MEMBER:Cheryl Cartwright

DATE:15 November 2022

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(2)(a) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 15 November 2022 at 3:21pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – joint rental agreement – receipts for utilities – child born of the relationship – supporting statements – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

CASES

El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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

2. The applicant applied for the visa on 16 November 2016 on the basis of her relationship with her 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 (Cth) (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(2)(a) because insufficient evidence had been provided in order to demonstrate that the applicant and sponsor were in a genuine married relationship.

4. On 18 September 2019 the applicant applied to the Tribunal for review of the refusal decision. Upon reviewing the submissions and further evidence, the Tribunal considered that, based on the material before the Tribunal, a hearing was not required and that the review should be decided in the review applicant’s favour pursuant to s 360(2)(a).

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

   Consideration of claims and evidence

6. The issue in the present case is whether at the time of application on 16 November 2016, the applicant and the sponsor were spouses for the purposes of the Act.

7. As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

   Evidence of events subsequent to 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’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

8. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

9. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 (a time of decision criterion) as well.

   Background

10. The parties met in India in 2008 and were friendly. They remained in touch via social media when the sponsor moved to Australia in 2009. The sponsor became an Australian citizen in 2014. The applicant married in India and moved to Canada in 2010. The applicant and her first husband separated in April 2015 and filed for divorce.

11. The sponsor visited the applicant in Canada in 2015 and they travelled from Canada to India together. The sponsor returned to Canada later in 2015 and the parties lived together.

12. After the applicant’s divorce was finalised on 9 July 2016, the parties married in Canada on 14 July 2016 and decided to move to Australia to live later in 2016.

    Non-disclosure certificate

13. The Department’s file contains a non-disclosure certificate pursuant to s 376 of the Act. The s 376 certificate made on 3 December 2019 stated that the folio contains an anonymous allegation, that the information was provided in confidence to the Minister, or to an officer of the Department and that disclosure would be contrary to public interest.

14. The certificate was signed and dated, as required by El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840. Having reviewed the certificate and the material sought to be protected from disclosure, the Tribunal finds that the certificate was validly made.

15. The information in the certificate suggests that the applicant had defrauded the Canadian Government and her family and had entered into a contrived marriage with the sponsor.

16. Given the information provided to the Tribunal since the date of the certificate does not support the allegation that the parties’ marriage is contrived the Tribunal, therefore, gives little weight to the information in the s 376 certificate.

    Whether the parties are in a spouse or de facto relationship

17. 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. A copy of his citizenship certificate is on the Department’s file.

18. ‘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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

19. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married on 14 July 2016 in Saskatoon, Canada. A copy of the marriage certificate is on the Department’s file.

20. 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).

    Are the other requirements for a spouse relationship met?

21. Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other.

22. In considering these issues, the Tribunal has had regard to all the documents on the Department’s file and the Tribunal’s file.

    The financial aspects of the relationship

23. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

24. There is no evidence before the Tribunal that, at the time of application and at the time of this decision, the parties jointly owned or own real estate or other major assets or had or have joint liabilities, or that one person in the relationship owed or owes any legal obligation in respect of the other.

25. The parties have provided rental receipts in both names for a property at [Address 1], Victoria, for 2020, 2021 and 2022, as well as a renewed rental agreement for the same property dated 20 January 2022.

26. The parties have provided the Tribunal with copies of joint bank account statements for accounts dated from 2019 to 2022. These statements show income from a range of sources and expenditure on a range of household items.

27. The Tribunal notes the limited information provided to the Department at the time of application and gives little weight to the financial aspects of the relationship at the time of application.

28. At the time of its decision, the Tribunal accepts that the parties share household expenses and gives some weight to the evidence of the financial aspects of the relationship.

    The nature of the household

29. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

30. The parties moved from Perth Western Australia to Melbourne Victoria in 2019 and have lived at [Address 1], since then.

31. The parties provided numerous receipts for utilities invoices addressed to both parties at [Address 1] and photographs of themselves sharing kitchen duties. No statement was provided regarding sharing of household duties.

32. The parties provided photographs of social events, including meals at their home with friends.

33. The parties provided evidence of a baby daughter born to the parties on 25 May 2021 at Werribee. Copies of the child’s birth certificate and passport are on the Tribunal’s file, as are photographs of the baby, including photographs with the parents in hospital at the time of birth, social activities including the child during the past year, and the child’s first birthday party held at home.

34. The Tribunal notes the lack of substantial evidence of a joint household provided to the Department at the time of application and gives little weight to this lack of evidence.

35. The Tribunal gives some weight to the parties residing at the same address and the labelled photographs of their living arrangements.

36. The Tribunal accepts the evidence that the parties have a daughter and jointly provide care for the child. The Tribunal gives great weight to this aspect of the relationship and is satisfied that the nature of the household is that of a genuine and continuing relationship between the parties

    The social aspects of the relationship  

37. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

38. The Tribunal has received a number of photographs of the parties socialising with groups of people, including dinners and the celebration of birthdays.

39. The Tribunal has received numerous statements and statutory declarations from friends attesting to the genuineness of the relationship. The Tribunal notes that the extended families of both parties do not reside in Australia.

40. The Tribunal notes the lack of substantial evidence of social activities and from friends and acquaintances provided to the Department at the time of application and gives little weight to this lack of evidence.

41. The Tribunal gives great weight to the photographs of social events undertaken by the parties and to the statements in support of the parties’ relationship.

42. The Tribunal is satisfied that at the time of application and at the time of this decision the parties have represented and do represent themselves to other people as being married to each other.

    The nature of the persons’ commitment to each other

43. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

44. In statements provided to the Department the parties outlined how they met in 2008 in India and developed a friendship and maintained the friendship after the sponsor moved to Australia in 2009 and the applicant married in India in 2009 and moved to Canada in 2010.

45. In 2015 the sponsor visited the applicant in Canada when she separated from her first husband and they travelled to India together, meeting with each other’s friends and families. The sponsor returned to Canada later in 2015 and the parties lived together. They married in July 2016 after the applicant’s divorce was finalised.

46. They moved to Australia in 2016 to live in Western Australia and moved to Victoria in 2019.

47. Having regard to all the evidence before it, the Tribunal accepts the claims about the inception and development of the claimed partner relationship.

48. The Tribunal accepts and gives weight to the evidence that, at the time of application on 16 November 2016, the parties had been married for four months and that, at the time of this decision they have been married for approximately six years. The Tribunal accepts that the applicant and the sponsor have lived together as claimed for more than six years and gives some weight to this length of time.

49. With respect to the degree of companionship and emotional support that the persons draw from each other, the Tribunal notes the birth of the parties’ daughter and the photographic evidence of them with their child and gives great weight to this evidence.

50. The Tribunal also notes the length of time the parties had remained friends and supportive of each other while living in different countries and gives some weight to this aspect of the relationship.

51. The Tribunal notes the statutory declarations from friends of the parties, Tarandeep Kaur dated 18 August 2020, Shivani Kanwar dated 9 September 2020, Akshay Thakur dated 9 September 2020 and Rinku Maggon dated 13 September 2020, describing the parties as being in a loving and supportive relationship.

52. The Tribunal places great weight on the evidence of the nature of the persons’ commitment to each other. In the Tribunal’s view, this evidence is strongly suggestive that the parties have a mutual commitment to a shared life to the exclusion of all others, they have a genuine and continuing relationship and they live together, not separately and apart on a permanent basis.

53. The Tribunal is satisfied that at the time of application and at the time of this decision the parties were and are in a committed spousal relationship.

    Conclusion

54. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.

55. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, both at the time of application on 16 November 2016 and at the time of this decision, the applicant and the sponsor:

    ·had and have a mutual commitment to a shared life as wife and husband to the exclusion of all others, as required by s 5F(2)(b) of the Act;

    ·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and

    ·lived and live together as much as possible as required by s 5F(2)(d)(i) of the Act.

56. Given these findings, the Tribunal is satisfied that, at the time the visa application was made and at the time of this decision, the parties were and are in a spousal relationship. Therefore, the visa applicant meets cls 820.211(2)(a) and 820.221.

57. 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

58. 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(2)(a) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    Cheryl Cartwright
    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).