Kumar (Migration)

[2022] AATA 4599

Kumar (Migration) [2022] AATA 4599 (17 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vikas Kumar

REPRESENTATIVE:  Mr Nigel James Dobbie (MARN: 9370721)

CASE NUMBER:  1816513

HOME AFFAIRS REFERENCE(S):          bcc2014/2994384

MEMBER:Moira Brophy

DATE:17 November 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 17 November 2022 at 12:19pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – joint bank accounts and insurance – guardianship of the sponsor’s children – inconsistent evidence of household and finances – separate residences – social recognition by some family and friends – employment and business details – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 65, 359
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206
Minister of Immigration Dhillon [1990] FCA 144

statement of decision and reasons

ISSUE

1. The issue in the present case is whether the applicant, Mr Vikas Kumar, and his sponsoring spouse, Ms Peta Maree Edwards, were at the time of application in a genuine relationship and whether at the time of decision they continue to be in a genuine relationship.

   application for review

2. 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).

3. The applicant applied for the visa on 6 November 2014 on the basis of his relationship with his 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.

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not persuaded on the evidence that the applicant and his sponsor were in a genuine and continuing relationship.

5. The applicant, Mr Vikas Kumar appeared before the Tribunal on 8 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Ms Peta Maree Edwards and from her mother, Ms Dawne Clayton. At the time of hearing, the Tribunal attempted to call Mr Viraj Singh and Mr Monu Kumar as witnesses, but they were not answering their calls. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

6. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   Background

8. The applicant, Mr Vikas Kumar was born on 1 February 1987 in India. He has not declared any previous relationships. His parents and three sisters and one brother reside in India.

9. The applicant came to Australia on 16 May 2009 as the holder of a Student (subclass 572) visa which was valid until 15 June 2011. The applicant was granted further Student visas on 15 November 2011 and on 26 June 2012. A further student visa granted on 2 October 2012 was cancelled on 24 October 2013. On 6 November 2014, the applicant lodged an application for a Partner (Temporary)(Class UK) (Subclass 820) visa and a Partner (Residence)(Class BS) (Subclass 801) visa on the grounds of being in a spousal relationship with an Australian citizen, Ms Peta Maree Edwards (the sponsor). A Bridging WA (subclass 010) visa was granted.

10. The applicant’s sponsor, Ms Peta Maree Edwards, was born on 17 August 1981. She is an Australian citizen by birth. She has declared no previous relationships. Ms Edwards has three children, a daughter born in 2005, a son born in 2006 and a daughter born in 2010. Her father is deceased, and her mother and two sisters reside in Australia.

11. At the time of application, the parties stated they met on 15 May 2012. They committed to a shared life to the exclusion of all others on 3 July 2014, being the date they were married. The parties applied for the visa on 6 November 2014.

12. In assessing the application, the delegate found on 26 August 2016 the applicant was not able to satisfy the Schedule 3 requirements because he was not the holder of a valid visa at the time the application was made, and there were no compelling circumstances sufficient to waive those provisions.

13. The applicant sought review of the decision and the matter was decided by the Tribunal (differently constituted) on 20 December 2017. The Tribunal remitted the matter to the Department finding there were compelling reasons to not apply the Schedule 3 criteria.

14. On 24 May 2018, the delegate of the Department found the applicant did not meet the criteria for a Partner visa. In the Record of Decision, a copy of which the applicant has provided to the Tribunal, the delegate was concerned that:

    ·The financial aspects of the relationship were not consistent with the parties being in a genuine spousal relationship. He attached little weight to the joint bank account statements as they do not identify who is performing transactions in relation to the account (so evidence of who uses the account).

    ·The delegate gave little weight to a large number of purchase receipts, as he did not consider that to be strong evidence of pooling of financial resources.

    ·The delegate found that although there was some evidence provided by the applicant and the sponsor that they had notified utility companies and various doctors that they were living together, on balance this did not satisfy them that the couple were living together in a spousal relationship, sharing a household or responsibilities of a household. The delegate also noted that the sponsor’s and applicant’s relationship statements provided minimal information about the couple’s living arrangements.

    ·The delegate found that Form 888 statements from the couple’s friends and the sponsor’s mother did not explain why witnesses considered relationship to be genuine, so little weight was given to these.

    ·The delegate noted that photos were provided of the couple in the company of other people undertaking social activities, but did not consider these convincing evidence of the couple being in a committed spousal relationship.

    ·The delegate concluded that the totality of the above evidence did not establish that the applicant and the sponsor were in a genuine, ongoing spousal situation for three years.

15. The applicant sought review of the delegate’s decision at the Tribunal.

16. On 7 October 2021, the Tribunal wrote to the applicant requesting further evidence of the relationship the applicant claimed to be in. The applicant provided documents to the Tribunal including, but not limited to the following;

    ·Joint bank account statements covering the period from 2020 to 2021;

    ·Joint health insurance documentation addressed to the applicant and covering the applicant, the sponsor and the sponsor’s children from a previous relationship, paid to 14 April 2020;

    ·Various utility bills covering periods in 2018 to 2021, addressed to the applicant and sponsor at their claimed shared address;

    ·Various items of school documentation indicating the applicant is the guardian of the sponsor’s children from a previous relationship;

    ·Various items of medical documentation concerning the sponsor’s children of a previous relationship, variously dated;

    ·Documentation indicating that the applicant and sponsor both have access to the applicant’s superannuation account, dated 20 March 2019;

    ·Car insurance documentation concerning the applicant, dated 12 October 2018;

    ·Documentation depicting various activities in relation to an NAB account between 2017 and 2019;

    ·Various receipts evidencing multiple dates;

    ·Various photos of the parties presenting as a couple to family/friends, and attending social events;

    ·Various membership cards belonging to the applicant, bearing different dates;

    ·Family and Community Services document relating to the sponsor, bearing the date of 15 November 2019;

    ·Documentation relating to the applicant’s employment for periods throughout 2018 to 2021;

    ·Various utility bills addressed to the parties’ claimed shared address and covering periods in 2019 to 2021;

    ·Financial document indicating the applicant transferred bond money to the sponsor, dated 20 March 2019;

    ·Logistical documentation indicating that the applicant’s relatives sent gifts to the applicant purportedly to give to the sponsor’s children from a previous relationship;

    ·Relationship statement from the sponsor, dated 23 October 2021; and

    ·Relationship statement from the applicant, dated 25 October 2021.

    Tribunal Hearing

    Section 359AA

17. The Tribunal advised the applicant that it would put to him evidence given by he and his sponsor at the time of hearing that was inconsistent, under s 359AA of the Act, and advised that if the Tribunal placed weight on evidence that was inconsistent with his submission that he was in a genuine and continuing relationship with his sponsor, that would lead the Tribunal to affirm the decision. The Tribunal explained to the applicant that inconsistencies in the evidence may lead the Tribunal to find that he was not in the relationship he claimed and that his evidence was not credible. Furthermore, the inconsistencies may lead the Tribunal to make a finding that he was not a credible witness.

18. The Tribunal put to the applicant its concerns that he had told the Tribunal that last Christmas he had gone to Bowenfels on Christmas Day and returned on Boxing Day. He said they spent Christmas Day at home with the two younger kids. They did not go anywhere and the eldest girl had come home on Boxing Day. This was not consistent with the evidence given by the sponsor that last Christmas Day, she, her three kids and the applicant had gone for a barbeque at the home of a friend of her mother’s. When asked, the mother of the sponsor said the applicant had come to Bowenfels for Christmas and they had gone for a barbeque at the home of her friend Peter, and they all spent the day there.

19. The Tribunal put to the applicant its concerns that he had told the Tribunal the last time they did something together socially was on the occasion of the sponsor’s youngest daughter’s birthday. He said he had cooked her favourite dish for her (spinach chicken). This was not consistent with the evidence given by the sponsor that for her youngest daughter’s birthday, they had gone to the park and had pizza.

20. The Tribunal put to the applicant its concerns that he gave evidence that at the time of his birthday he was very busy and had no recollection of their celebrating his birthday This was not consistent with the evidence of the sponsor that all the family had come together for the applicant’s birthday and they had celebrated with a cake at her mother’s place.

21. The Tribunal put to the applicant its concerns that he gave evidence that the sponsor had purchased a car from her friend about seven months prior to the hearing. She had paid $1200 for the car, and he had contributed $500 to $600. This was not consistent with the evidence of the sponsor, who said she had purchased her car three years ago. She had purchased the car from a friend for $2000 and she had paid the car off over a few months.

22. The Tribunal put to the applicant its concerns as to the inconsistencies in the evidence as to the sponsor’s source of income. The applicant told the Tribunal the sponsor was in receipt of a carer payment from Centrelink, plus family tax benefits and child support for her two younger children. She received about $400 per fortnight and she had no other source of income. She paid rent of $210 per week and that rent was deducted from an account in her name at the Commonwealth Bank. This was not consistent with the evidence given by the sponsor that she was in receipt of jobseeker payments, family tax benefits A and B and child support for her two youngest children. She works casually a few days per week at Foodworks in Wallerawang. She receives $570 per fortnight from jobseeker, $468 per fortnight in family tax benefits, and about $7 or $8 child support for each child per fortnight. She receives $200 per week for her casual work but that is dependent on the days she works. She pays $588 per fortnight in rent and that is deducted directly from her Centrelink payments. The Tribunal was mindful the mother of the sponsor told the Tribunal the sponsor works full time each day from 8am to 2pm, and that because of this she was required to assist with getting the two youngest children to appointments.

    Post Hearing

23. At the conclusion of the hearing, the applicant was advised that time would be extended for him to make additional submissions considering the matters raised under s 359AA at the time of hearing. Submissions were due on or before 17 June 2022.

24. At the request of the applicant, time was extended for the production of documents and on 20 June 2022 the applicant provided:

    ·Commonwealth Bank of Australia bank statements for the applicant’s business account for period from 28 January 2022 to 2 June 2022;

    ·Opal card details showing the applicant’s travel to Lithgow;

    ·Correspondence to the applicant and sponsor from Mountains Christian College regarding overdue school fees;

    ·Photographs;

    ·Centrelink statement for the sponsor dated 16 June 2022;

    ·Communiy and Justice letter to the sponsor dated 29 October 2021;

    ·Statutory declaration of the applicant dated 21 June 2022;

    ·Statutory declaration of the sponsor dated 21 June 2022; and

    ·Statutory declaration of Dianne Clayton dated 21 June 2022.

    Consideration of claims and evidence

25. In making its findings, the Tribunal has considered the documents contained in the Department and Tribunal files, as well as the oral evidence provided at the two hearings by the applicant, his sponsor and their witnesses, as well as the submissions received.

26. When considering the totality of the evidence given, the Tribunal considers the oral evidence given by the applicant and the sponsor to be confused, conflicting and unconvincing. The Tribunal was concerned the parties frequently sought to adjust answers and sought wherever possible to evade giving an answer, especially when the questions pertained to their finances, personal details and living arrangements. The Tribunal did not consider it plausible that the parties could fail to remember pertinent details about where and when they celebrated occasions, especially those of the children, and how many nights they spent together each week. The Tribunal was concerned the answers the parties gave were deliberately vague in an attempt to not disclose any information they considered may be prejudicial to the claim. The lack of knowledge and the frequent shifting of evidence displayed particularly by the applicant were not consistent with the relationship the parties claimed to have. Whilst it is appreciated that Tribunal proceedings can be very difficult for parties and this stress can of itself lead to some inconsistencies in the evidence given, the Tribunal is not satisfied the explanations given are sufficient to overcome the Tribunal’s concerns. The preparedness of the applicant to tailor his evidence to achieve his desired outcome undermined the credibility of his claim.

27. The cumulative effect of the inconsistencies referred to at the conclusion of the hearing coupled with the evasiveness of the applicant was such that the Tribunal did not consider him to be a credible witness. The Tribunal does not place significant weight on his evidence unless it is corroborated by reliable evidence from other sources.

    Whether the parties are in a spouse or de facto relationship

28. 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.

29. ‘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 of the relationship 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

30. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. Prior to hearing, there was nothing in the information before the Tribunal to cast doubt on the validity of the parties’ marriage on 19 February 2016, and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, the Tribunal finds 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?

    Financial

31. In considering the financial aspects of the relationship, the Tribunal considered whether there was evidence of any joint ownership of assets; joint liabilities; the extent of the pooling of financial resources; whether there were any legal obligations owed to the other party; or any sharing of day-to-day household expenses.

32. The applicant told the Tribunal that since last year, he had been living in a rented unit at Parramatta. He said he lived with two other people, and he pays $100 per week for his share of the rent. The applicant said he left his job about four months ago and he is renting a restaurant and food truck. It is a new business selling Indian street food. He works at the restaurant, and he has employed people to operate the food truck. He has a business partner who used to be a chef. The applicant said he was not drawing a wage from the business at present. He contributed $15,000 to the start-up costs of the business. The business is paying all its running costs. The applicant said he has stocks of cryptocurrency, and he sells some of those if he needs monies to meet any family costs. He last sold some about a month ago to pay an energy bill, a gas bill and school fees for Cherie, the sponsor’s youngest child. The school fees are $356 per fortnight.

33. The applicant said he has a day off every second Tuesday, and he goes to see the sponsor on those days. He said his visits were a lot less frequent since he started his new business four months ago. The sponsor said she had not been to the applicant’s apartment where he rents in Parramatta, and she had not been to the restaurant he has recently opened. The sponsor was not able to tell the Tribunal how much rent the applicant paid or how he had financed his new business.

1. When asked about the sponsor’s income, the applicant said she was in receipt of a carer payment from Centrelink, plus family tax benefits and child support for her two younger children. She received about $400 per fortnight and she had no other source of income. She paid rent of $210 per week and that rent was deducted from an account in her name at the Commonwealth Bank. This was not consistent with the evidence given by the sponsor that she was in receipt of jobseeker payments, family tax benefits A and B and child support for her two youngest children. She works casually a few days per week at Foodworks in Wallerawang. She receives $570 per fortnight from job seeker, $468 per fortnight in family tax benefits and about $7 or $8 child support for each child per fortnight. She receives $200 per week for her casual work but that is dependent on the days she works. She pays $588 per fortnight in rent and that is deducted directly from her Centrelink payments. The Tribunal was mindful the mother of the sponsor told the Tribunal the sponsor works full time each day from 8am to 2pm and that because of this, she was required to assist with getting the two youngest children to appointments.

2. The evidence before the Tribunal was consistent as to each party being responsible for paying rent at the premises where they lived. When asked about other shared financial commitments, both parties told the Tribunal they did not have shared finances. The applicant paid the utility costs at the property the sponsor resides at as well as the school fees of the youngest child. They did not have any savings and they did not have any loans. The applicant said he had superannuation and the sponsor was the beneficiary. He has not made a Will.

3. On the evidence given, the parties do not have any joint ownership of property, and they have no shared assets and no shared liabilities.

4. There was a paucity of evidence to make findings that either at the time of application or at the time of decision they pooled their financial resources or shared day‑to‑day household expenses. There was no evidence either party owed the other party any legal obligations. 

5. Overall, there is little information regarding the financial aspects of the relationship that supports a finding that the parties are in a genuine relationship either at the time of application or at the time of decision. The parties have only limited knowledge of each other’s financial affairs and there was very limited evidence of any intermingling. While there was clearly a cooperative relationship where the applicant undertook to assist the sponsor financially with household costs and the costs of educating her youngest daughter, the Tribunal was not persuaded this was other than an arrangement reached by the parties for their own purposes. This does not support a finding that the financial aspects of the relationship are consistent with the parties being in a genuine and continuing relationship.

   Nature of the household

6. In assessing the nature of the household, the Tribunal has considered whether the parties have any joint responsibility for care and support of children; what their living arrangements are; and if there is any sharing of housework.

7. In assessing the nature of the household, the Tribunal considered the evidence, both oral and documentary, given by the parties. The applicant told the Tribunal he lives with the sponsor at Bowenfels “on and off”. He travels to see her every second Tuesday, but the meetings were less frequent since he started his business. The sponsor told the Tribunal she had not visited the applicant at the unit he lives in at Parramatta. She said she estimated the applicant had spent two nights a week with her over the last year. The mother of the sponsor told the Tribunal the applicant came to Bowenfels every second week or third week and stayed a couple of days. She said time spent together was dependent on their schedules as they were both working full time. Opal card records provided after the hearing were corroborative of the applicant’s evidence that he visited the sponsor, and those visits were irregular and were generally on a Tuesday.

8. At the time of hearing, the parties gave consistent evidence that the sponsor has responsibility for the household chores and for the washing. The applicant assists when he is there. The sponsor does the cooking and the grocery shopping, assisted by the applicant if he is there.

9. The parties do not have shared responsibility for any children. While the son and daughter of the sponsor live with her and are primarily her responsibility, the applicant has a positive relationship with the children. The eldest daughter of the sponsor no longer lives with her, but the applicant told the Tribunal he tries to maintain contact with her through text messages.

10. The Tribunal accepts on the evidence that there is a cooperative relationship between the parties, and that the applicant occasionally stays at the home of the sponsor. The Tribunal was not persuaded the conduct of the parties in not living together on a full-time basis, given their evidence that they were living together less than 40% of the time, to be conduct consistent with the relationship the parties claimed to be in.

11. Based on the totality of the evidence, the Tribunal was not able to distinguish between a situation where the applicant and sponsor are living on an occasional basis as a couple, or alternatively one where the applicant and the sponsor were in a cooperative relationship to assist the applicant to obtain a visa.

    Social aspects of the relationship

12. The Tribunal considered the social aspects of the relationship including whether the 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.

13. The applicant provided to the Department Form 888 statements from the following, who attested to the genuine nature of the relationship between the applicant and the sponsor:

    ·Ravi Kochbar, dated 3 November 2014;

    ·Dianne Clayton, dated 9 October 2014; and

    ·Daljeet Singh Gidda dated 30 October 2014.

14. The mother of the sponsor, Mrs Dianne Clayton, provided oral testimony that she considered her daughter and the applicant to be in a genuine and continuing relationship, she was fully supportive, and regarded the applicant as an important member of her family who always attended family celebrations. His attendance at family celebrations such as Christmas was corroborated by photographs provided.

15. A family database check from Mountains Christian College from 2019 was provided showing the applicant was listed as the father for the daughter of the sponsor.

16. At the request of the Tribunal, the sponsor provided a statement from Centrelink dated 16 June 2022 showing she was being paid at the partnered rate for her JobSeeker payment. Her partner was recorded as being the applicant. It corroborated the oral testimony of the sponsor that she had declared the relationship to Centrelink.

17. A letter from Communities and Justice dated 29 October 2021 was corroborative of the oral evidence given at hearing that the applicant was listed as an additional occupant at the social housing property where the sponsor and her two youngest children reside.

18. The Tribunal accepts, based on the photographic evidence, the statements provided and the oral testimony, that the parties have socialised together with members of the sponsor’s immediate family and some mutual friends.

19. The Tribunal further accepts that the parties represent themselves to other people as being in a relationship.

20. After considering all the information regarding the social aspects of the parties’ relationship, the Tribunal is satisfied their relationship is supported by some members of the sponsor’s family and some friends. In weighing all the available evidence regarding the social aspects of the parties’ relationship, the Tribunal finds it is indicative of a couple in a genuine and continuing relationship.

    Nature of the commitment

21. In considering the nature of the parties’ commitment to each other, the Tribunal considered the evidence as to the duration of the relationship; the length of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term. In considering the evidence as to the nature of the commitment the parties had to each other, the Tribunal was mindful that the evidence as to the length of any relationship between the applicant and the sponsor was equivocal, as was the evidence as to how long they lived together.

22. Taking into account the evidence given at hearing, the Tribunal is not persuaded that the parties have resided together on a continuing basis since their marriage. On the evidence they gave at hearing, they spend on average one to two days a week together and their evidence was that the time spent together was decreasing because the focus of the applicant was on building his business. While the Tribunal accepts that parties in a relationship may live apart for periods and remain in a genuine and continuing relationship because of their commitment to that relationship, the Tribunal was concerned that the conduct of the parties in this matter was not consistent with an ongoing commitment to the relationship.

23. The Tribunal accepts the parties have known each other since 2012 and have been married since July 2014.

24. In assessing the commitment of the applicant to the relationship, the Tribunal has placed weight on the conduct of the parties in spending most of the week apart and the fact they had very limited knowledge as to each other’s daily routines and finances. The applicant told the Tribunal the sponsor was not employed, the sponsor told the Tribunal she worked casually, and the mother of the sponsor told the Tribunal the sponsor was in full time employment. The Tribunal was concerned the lack of knowledge of the applicant was in fact an indicator of his lack of commitment to the relationship. The sponsor had little knowledge of the applicant’s new business venture, she was not aware as to how he financed it, she had not shown an interest by visiting either his business premises or where he was currently living. The Tribunal did not regard this conduct as being consistent with the relationship the parties claimed to be in.

25. The evidence as to the parties’ commitment to each other was, when considered in its totality, confused and unconvincing. The Tribunal considered the oral evidence given by the parties at the time of hearing to be indicative of parties endeavoring to present their evidence in a manner designed to obtain a migration outcome. The Tribunal was concerned there was a lack of candour in the giving of the evidence by both parties in order to present their relationship as being a genuine and continuing relationship.

26. The Tribunal put the applicant on notice at the hearing regarding its concerns that his primary commitment was to a visa and not to a genuine and continuing relationship with the sponsor.

27. In considering this, the Tribunal was mindful of recent judicial consideration of this issue. In Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Northrop, Wilcox and French JJ, 8 May 1990, unreported), a modern perspective of the common law in Australia, concerning cognisable motivations for marriage, has been restated as follows:

    ... people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc as according to what may be described as "community expectations". It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.

28. In the Tribunal’s view, the Act and Regulations provide clear guidance as to the matters that decision‑makers are to consider in assessing relationships for the purposes of a partner visa, and it is to these matters that regard must be had.

29. In this instance, the Tribunal was concerned that at the time of application and at the time of decision, there was little evidence of a commitment by the applicant to anything other than a visa and this was a distinguishing factor in this case.

30. In the Tribunal’s view, the Act and Regulations provide clear guidance as to the matters that decision‑makers are to consider in assessing relationships for the purposes of a Partner visa, and it is to these matters that regard must be had.

31. After considering the evidence before it, the Tribunal has concluded that the nature of the commitment that the applicant showed at the time of application and at the time of decision was not indicative of a genuine and continuing spousal relationship.

    decision

32. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Moira Brophy
    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).