Khambhatta (Migration)

[2021] AATA 3766

Khambhatta (Migration) [2021] AATA 3766 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Gracy Sunilkumar Khambhatta

CASE NUMBER:  1910435

HOME AFFAIRS REFERENCE(S):          BCC2015/704313

MEMBER:Peter Vlahos

DATE:7 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

·cl.100.221of Schedule 2 to the Regulations

This Statement was made on 7 September 2021 at 10.40AM

CATCHWORDS
MIGRATION –Partner (Migrant) (Class BC) visa – Subclass 100 –couple have the joint care and custody of their children –applicant is the spouse of her sponsoring partner –genuine relationship –parties validly married – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, r 1.25, Schedule 2, cl 100.221

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 2 April 2019 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 February 2015 on the basis of her relationship with her sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (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.

4. On 22 June 2018 a document request letter was sent to the applicant for her consideration, but no response was received by the Department (according to its records). The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221 because no evidence had been provided that the applicant continued to the spouse of her sponsoring partner and none of the exceptions of cl. 100.221 applied.

5. Somehow, the applicant’s attention to the Department’s request for documents went astray, but the applicant and her sponsor received the Department’s decision, or were otherwise made aware of its content, and applied for review in the Tribunal within the prescribed timeframe.

6. Twelve months later, documentary evidence and submissions were sent to the Tribunal.  Having examined this material, the decided to undertake this review without a formal hearing of the Tribunal.

7. Having regard to the totality of cl. 100.221(2), the Tribunal makes the following additional findings:

   (a)  Mr Kelvin Ravikant Christian is the sponsoring partner. The Tribunal is satisfied that he is the person who was specified as Ms Gracy Sunilkumar’s spouse in the related subclass 309 application and is an Australia citizen. In this regard a copy of his Australian passport is held on the Department File.

   (b)  The Tribunal is also satisfied, based on Departmental records, that at least two (2) years have passed since the application (subclass 309 visa) was made.

8. The applicant appeared before the Tribunal on 2 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor and husband (and Partner) Mr Kelvin Christian.

9. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

10. Due to the continuing COVID-19 state of emergency in place in the State of Victoria, the hearing with the consent of all the parties was held via telephone.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue for me to decide in this review is whether Ms Sunilkumar is the spouse of Mr Kelvin Christian.

    Whether the parties are in a spouse or de facto relationship

13. ‘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 husband and wife 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).

14. In forming an opinion as to 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 r.1.15A(3) of the Regulations.

15. The Tribunal is 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), having regard to a translated copy of a Vietnamese marriage certificate ( demonstrating a marriage was solemnised in accordance with the law of India on 8 January 2015.

16. As to the financial aspects of the relationship – including joint ownership of assets, and joint liabilities; extent of pooling of financial resources[1], any legal obligations owed to the other party; any sharing of day-to-day household expenses, the Tribunal has had regard to documentary evidence produced to the Tribunal demonstrating the couple have held a joint bank account, and a committed to a mortgage[2] for their matrimonial home where they are currently in residence since 2016.  The Tribunal also takes note of that the couple have the joint care and custody of their children.[3]

    [1] see AAT File documents provided by the Applicant’s Migration Agent

    [2] Mortgage documents and Letter from Westpac Banking Corporation confirming the existence of a mortgage committed to by the parties.

    [3] see Birth Certificate on the AAT File submitted dated (of registration) 25 February 2020.  The Certificate also mentions the couple older child Simone (aged 3 years-of-age).

17. The Tribunal considers that the financial aspects of the relationship support the making of the determinations the Tribunal makes reference to in paragraph 13.

18. As to the nature of the household – including any joint responsibility for care and support of children, parties’ living arrangements; and any sharing of housework, the Tribunal takes into account the birth certificate for the child Joleen Christian (in respect of a birth on 29 January 2020). The certificate identifies Mr Kelvin Christian as the child’s father and refers to the marriage of the parents (being on 8 January 2015, at Ahmedabad, India)

19. In the context of this corroborating evidence, and the evidence of rental receipts, the Tribunal accepts evidence provided by the applicant and her sponsor and the submissions made by their representative, Mr Rodney Calhaem to the effect that they currently live together at an address in East Cranbourne, Victoria 3977 jointly looking after their children.  The Tribunal accepts also that their household routine as they described it to the Tribunal is consistent with the couple cohabitating as spouses.

20. The Tribunal considers that the nature of the household strongly justifies the making of the determinations mentioned in paragraph 13.

21. As to the social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities, no further corroborating evidence has been offered to the Tribunal.  Ms Sunilkumar and Mr Christian in their evidence before the Tribunal stated clearly and without any equivocation that all their family and friends are aware that they are a married couple (after all, they were married as Ms Sunilkumar told the Tribunal by proxy but a proxy marriage that had the acceptance of her and her husband) and have a happy family, and that they continue to represent themselves as husband and wife in social outings and when they attend their local church.[4]

    [4] The parties also submitted a number of photographs to the Tribunal as evidence of their family and social life: see AAT File.

22. As to the nature of persons’ commitment to each other - including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term, these matters are demonstrated to my satisfaction through drawing inferences from cohabitation and jointly raising two children.  In this context the Tribunal will accept the verbal statements of Mr Christian and Ms Sunilkumar as to their commitment to each other as they have presented to the Tribunal, and the Tribunal accepts that the nature of their commitment is consistent with a spousal relationship and longstanding.

23. The Tribunal considers the weight of evidence before it as to the matters set out in r.1.15A(3) of the Regulations justifies making the determinations in respect of Ms Sunilkumar and Mr Christian that:

    ·there is a mutual commitment to a shared life as husband and wife to the exclusion of all others,

    ·the relationship is genuine and continuing, and

    ·the couple live together.

24. Given these findings the Tribunal is satisfied that at the time of this decision that Mr Kelvin Christian and Ms Sunilkumar are in a spousal relationship, and the Tribunal finds that Ms Sunilkumar is the spouse of her sponsoring partner.

25. Furthermore, given the findings above, the appropriate course is to remit the application for the visa to the Minister to reconsider the remaining criteria for a Subclass 100 visa.

    DECISION

26. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

    ·cl.100.221of of Schedule 2 to the Regulations

    Peter Vlahos
    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).