Kaur (Migration)

[2022] AATA 1221

Kaur (Migration) [2022] AATA 1221 (8 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Chandanjit Kaur

VISA APPLICANT:  Mr Gurinder Jit Singh

REPRESENTATIVE:  Mrs Nissha Mellwani (MARN: 0321177)

CASE NUMBER:  1927945

HOME AFFAIRS REFERENCE(S):          BCC2018/3307422

MEMBER:P. Maishman

DATE AND TIME OF

ORAL DECISION AND REASONS:         8 February 2022 at 12:50 pm (WA time)

DATE OF WRITTEN RECORD:                18 February 2022

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 18 February 2022 at 10:12am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – parties have a child together –parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 1.15A, Schedule 2, cls 309.211, 309.221

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 September 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 8 February 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Singh applied for the visa on 1 September 2018 on the basis of his relationship with his sponsor, Ms Kaur.  The delegate refused to grant the visa because the delegate wasn't satisfied Mr Singh was the spouse or de facto partner of Ms Kaur because the delegate says insufficient information had been presented.

4. Ms Kaur, as the review applicant, appeared before the Tribunal today and gave oral evidence.  I also heard today from Mr Singh, the visa applicant, who also gave oral evidence.  The evidence of Ms Kaur and Mr Singh was heard separately.  Ms Kaur and Mr Singh gave their evidence confidently and without hesitation. They were consistent in matters that I am satisfied only they would've known, had they been in a genuine couple relationship.  I am satisfied that the evidence they've given me today is genuine and honest, and I find that Ms Kaur and Mr Singh are credible witnesses and I accept their oral evidence on that basis.

5. I have put a lot of weight on the oral evidence of Ms Kaur and Mr Singh, the documents provided to the Tribunal were not so convincing of the duration and genuineness of their relationship but in context with their oral evidence, I am satisfied that their relationship is as they claim.

6. I have before me a copy of the Department's file, that contained their visa application and sponsorship forms and the documents provided to the department.  The Tribunal received a number of documents prior to the hearing, including a certificate of title and documents associated with the purchase of the property in Darch, in which Ms Kaur and Mr Singh live with another family, their friends.

7. The Tribunal also received ASIC documents; a number of photographs; various invitations; and statements from Hemant Gab, Veerpal Kaur Gill, Rajveer Kaur and Mandeep Kaur Brau.  The Tribunal also received a copy of a child's birth certificate showing Mr Singh and Ms Kaur are the parents of a child born in April 2021.

8. The issue before me today is whether Mr Singh is the spouse of Ms Kaur. “Spouse” is defined in section 5F of the Act and provides that a person is the spouse of another person where they are in a married relationship. People in a married relationship must be in a valid marriage for the purposes of the Act; they must have 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 they must live together. Those requirements are in section 5F(2)(a) to (d) of the Migration Act.

9. To form an opinion about those matters, I need to have regard to all the circumstances of the relationship, including evidence of the financial and social aspects of the relationship and the nature of their household and their commitment to each other.  These circumstances are set out in regulation 1.15A(3). 

10. The department's file contains a copy of a ceremonial marriage certificate, and copies of Mr Singh's and Ms Kaur's previous divorces. There's no evidence before me to suggest the marriage is not valid and on that basis, I consider that they are married to each other under a marriage that is valid for the purposes of the Act as required by section 5F(2)(a). 

11. In relation to the financial aspects of the relationship, Ms Kaur has purchased a house in her name only for around $560,000.

12. Her income is, or was, before she took extended parental leave up to around $60,000 a year.  The mortgage on the property is around $480,000.  I was concerned, at how Ms Kaur could obtain a loan of that amount given her income amount. Ms Kaur explained that Mr Singh's income was taken into account as were the other friends/family who have entered into an arrangement to purchase the house.  Taking into account all four of their incomes, the bank has been satisfied that they will be able to repay the mortgage. 

13. While the house is in Ms Kaur's name only, I am satisfied that Mr Singh has a significant financial interest in the house.  That is a shared asset that they own together, notwithstanding him not being included on the title. I also accept that Mr Singh would be liable to repay the mortgage, should Ms Kaur not be able to do so. 

14. I took into account two periods of joint account statements.  One provided at the time of application and another provided more recently to the Tribunal. Ms Kaur and Mr Singh were consistent in telling me about the accounts that they held.  One being a joint account, one being a business account and one being a mortgage account.  The transactions, although the periods of the transactions are not extensive, the transactions indicate that the parties were - or are pooling their resources which, at this stage, is Mr Singh's income only.

15. They pooled their resources to meet their day to day living costs. Ms Kaur, at the moment, is and has been on leave for 12 months in relation to her pregnancy and birth of her child.  Ms Kaur gave evidence that Mr Singh provides everything financially for her and their son at this point in time.

16. Ms Kaur hasn't worked for an extended time and Mr Singh has accepted and works hard to make sure that the mortgage is paid, the bills are paid, food is able to be paid for, and especially also, that specialist bills in relation to their son's medical complications are able to be met.

17. Taking into account the evidence, I am satisfied that the nature of Ms Kaur's and Mr Singh's financial aspects are indicative of a couple in a genuine spouse relationship. 

18. In relation to the household, I accept Ms Kaur's and Mr Singh's evidence that they resided together previously in Warwick. 

19. They gave consistent evidence about the approximate rent about and an unusual occurrence of the rent decreasing during the time they were there.  I am satisfied that they haven't colluded to tell the Tribunal that evidence.  They now live in Darch, Ms Kaur gave extensive evidence about the caring role that Mr Singh has for their child.

20. She does not drive, and he is always available, or makes himself available, to take their child and Ms Kaur to any medical appointments.  He has been there when their son has needed to go to hospital. They live together and they share their living areas with another family. Mr Singh does most of the shopping because he drives. They share aspects of the cleaning equally, occasionally Ms Kaur goes shopping with Mr Singh. There are a number of statutory declarations in relation to the social aspects of the relationship. Before I go onto the social aspects, I am satisfied that the nature of the household as described by Ms Kaur and Mr Singh is indicative of a couple in a genuine spouse relationship.

21. They are jointly responsible for the care and support of their son; they live together and share housework in the manner that a spousal couple would be expected to do.  There are a number of statutory declarations given to the Department, held on their file, one from Ankit Changotra and one from Vinod Saini.

22. The Tribunal has also received letters of support from (indistinct) Kaur, Hemant Gaba and Veerpal Kaur Gill.  I have taken into account a number of photographs showing Ms Kaur and Mr Singh together in various social environments. 

23. I was concerned that there was a shortage of family recognition of the relationship, or evidence to support family recognition. Ms Kaur showed me photographs on her telephone confirming that her parents and Mr Singh's parents came to Australia and celebrated their wedding back in 2018.

24. I accept Mr Singh's and Ms Kaur's oral evidence that both their parents, their friends and families, consider them to be a married couple and I accept that they plan and undertake joint social activities together and on that basis, I am satisfied the social aspects of their relationship are indicative of a couple in a married relationship.

25. In relation to their commitment to one another, Ms Kaur and Mrs Singh gave consistent evidence about the support that they've provided to each other during Ms Kaur's pregnancy and birth, and with the care and support of their child.  They both consistently gave me evidence about their future plans. They were both very keen to get home to India to see their respective families, and each other's families. 

26. Mr Singh demonstrated his knowledge of what Ms Kaur was studying and what her current requirements are to undertake practical sessions away from the house. He makes himself available so that she can pursue her studies and training.

27. In all the circumstances, I am satisfied that their commitment to each other is enduring and has been so at least since they married in 2018.  They have lived together for that time, and they draw significant companionship and emotional support from each other. I am also satisfied they see their relationship as long term and the nature of their commitment to each other is indicative of a couple in a marriage relationship. 

28. Having taken the reg 1.15A matters into account, I find that Mr Singh and Ms Kaur have a mutual commitment to a shared life to the exclusion of all others. Their relationship is genuine and continuing, and they live together. Having made those findings, section 5F(2)(b) to (d) of the Migration Act are satisfied as far as the definition of ‘spouse’ goes.

29. I am satisfied that the requirements of section 5F(2) are met at the time this visa application was made and also, at the time of this decision.

30. Therefore, Mr Singh meets the criteria in clause 309.211 and clause 309.221 for the grant of the visa. 

31. For those reasons, I remit the application to the minister to consider the remaining criteria for Subclass 309 (Partner (Provisional)) visa.

    DECISION

32. The Tribunal remits the decision under review with the direction that the applicant meets cl 309.211 and cl 309.221 of Schedule 2 to the Regulations.  

    P. Maishman
    Member