Luthra (Migration)

[2018] AATA 2261

Luthra (Migration) [2018] AATA 2261 (8 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hanish Luthra

CASE NUMBER:  1517182

DIBP REFERENCE(S):  CLF2012/229991

MEMBER:Justine Clarke

DATE:8 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2)(c) of Schedule 2 to the Regulations

Statement made on 08 May 2018 at 2:13pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Spousal relationship – Certificate of marriage – Joint bank account – Resided together – Photographic evidence – Evidence of holidays – Frequency of communication – Length of relationship – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65, 359, 359A, 359C, 360, 363A, 375A
Migration Regulations 1994, r 1.09A, Schedule cl 801.221

CASES
Hasran v MIAC [2010] FCAFC 40
MIBP v Singh [2016] FCAFC 183

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 Immigration on 24 November 2015 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Mr Hanish Luthra, is a 30 year old national of India.

3. On 20 November 2012, the applicant applied for the visa on the basis of his relationship with his sponsor, Ms Mary Shyneth Paton (formerly known as Marry Shyneth Isberto and Shyneth Sinag Paton), who is, at the time of this decision, a 30 year old Australian citizen who was born in the Philippines.

4. At the time of application, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria include cl.801.221.

5. The applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 of Schedule 2 to the Regulations. The application was assessed under cl.801.221(2), as the delegate did not consider that the alternate subclauses (2A), (3), (4), (5), (6) or (8) applied in the circumstances. The delegate considered that the information and evidence, submitted in support of the application, was not sufficient to demonstrate that, at the time of the primary decision, the applicant satisfied the definition of spouse under s.5F of the Act. The Tribunal notes that the delegate gave great weight to members of the applicant’s family in India being unable to provide particular details of the sponsor.

6. On 14 December 2015, the applicant applied to the Tribunal for review of that decision. The applicant has been represented, in relation to the review, by the sponsor. There is no evidence before the Tribunal to suggest that the sponsor is a registered migration agent.

7. On 4 January 2016, the applicant submitted much documentary and photographic evidence in support of the review.

8. On 7 December 2016, the matter was constituted to a Member of the Tribunal.

9. On 21 December 2016, the then presiding Member arranged for the Tribunal to write to the applicant, by way of his authorised recipient (the sponsor), pursuant to s.359(2) of the Act, inviting him to provide further information to support his claims that he and his partner are in a spouse or de facto relationship.

10. The letter sent on that date included an information sheet, entitled ‘Evidence in Partner Cases’, which outlined the range of circumstances that the Tribunal is obliged to consider pursuant to r.1.09A (in the case of a de facto relationship) or r.1.15A (in the case of a spouse relationship). The letter stated that, if the information was not provided in writing by 4 January 2017, or an extension not sought and granted by 4 January 2017, the Tribunal may make a decision on the review without taking further steps to obtain the information. The applicant was informed that, in such circumstances, he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments. The information about the loss of the right to a hearing was in bold type. The applicant did not provide any information within the permitted time period.

11. As evidenced by a file note on the Tribunal’s file, on 23 February 2017, the applicant acknowledged, to the Tribunal registry staff member that he spoke to, that he had received the Tribunal’s letter and that he did not respond because he believed that he had already lodged all of his evidence.

12. Due to subsequent events, the then presiding Member was not available to review the case. Subsequently, the matter was constituted to the current Member presiding in this matter.

13. As the applicant did not provide the information within the permitted time period, s.359C(1) applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

14. Notwithstanding, the current presiding Member exercised the Tribunal’s discretion to adjourn the review to allow the applicant more time in which to demonstrate that he meets the requirements for the grant of a Partner (Residence) (Class UK) visa. On 6 March 2018, the Tribunal wrote to the applicant to invite him to provide further information to support his claims that, at the time of this decision, he and his partner are in a spouse or de facto relationship with each other. The Tribunal requested that the information be provided by 20 March 2018.

15. On 16 March 2018, the parties submitted written submissions and further information in support of the review application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue to be determined in this case is whether, at the time of this decision, the applicant is the sponsor’s spouse for the purposes of the Act.

    Whether the parties are in a spouse or de facto relationship

18. Clause 801.221(2)(c) requires that, at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant.

19. The applicant claims to be the spouse of the sponsor who, as noted earlier, is an Australian citizen. She was also identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

20. ‘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). 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 visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

    Are the parties validly married?

21. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant and the sponsor were married in Springvale South on 31 October 2012. A certified copy of their registered certificate of marriage is on the Department’s file. 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).

    Regulation 1.15A(3) factors

22. In assessing the issues in r.1.15A(3), the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files. The Tribunal notes that the applicant and the sponsor have provided a voluminous amount of information and evidence to the Tribunal.

    The Tribunal’s combined letter

23. On 5 May 2017, the then presiding Member arranged for the Tribunal to write to the applicant, by way of his authorised recipient (the sponsor) about two matters. First, the Tribunal informed him about a certificate made pursuant to s.375A of the Act which is on the Department’s file. The second part the letter of the letter related to s.359A of the Act.

    The certificate made pursuant to s.375A

24. The first matter addressed in the letter was the existence of the certificate made pursuant to s.375A.

25. The Tribunal informed the applicant that the Department’s file contains a certificate made pursuant to s.375A. The letter continued:

    The certificates [sic] state [sic] that a delegate of the Minister has determined and certified that:

    ·     information provided as attachment to an email was provided as an allegation and the source has an expectation of anonymity. The identity of the source of the allegation should not be disclosed or by extension, any information contained within the allegation that would have potential to identify the source.

26. The Tribunal stated that it considers that the certificate was validly made. It explained that this means that the Tribunal cannot disclose the documents or information which is subject to the certificate to him. The Tribunal invited the applicant to make any submissions in relation to the validity of the certificate by 19 May 2017.  

27. The letter continued, stating:

    In relation to this certificate, in accordance with the Full Federal Court decision in MIBP v Singh [2016] FCAFC 183, the Tribunal is required to balance its non-disclosure obligations with its obligations under s.359A, where it is possible to do so. Accordingly, where relevant, the gist of the information is set out below.

    Invitation to comment on or respond to information pursuant to s.359A

28. The next part of the letter stated that, pursuant to s.359A of the Act, the Tribunal was writing to give the applicant to give him clear particulars of information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

29. The particulars of the information are:

    ·     that you are not in a genuine relationship with your sponsor and that whilst you lived together with your sponsor initially for a short period, you no longer live with her.  

30. The Tribunal explained that, to meet the definition of ‘spouse’ under s.5F of the Act, he and his sponsor must be in a ‘married relationship’ for the purposes of the Act. Three of the four requirements for a ‘married relationship’ are that:

    ·     the parties have a mutual commitment to a shared life together as husband and wife to the exclusion of all others (s.5F(2)(b));

    ·     the relationship is genuine and continuing (s.5F(2)(c)); and

    ·     the parties live together or do not live separately and apart on a permanent basis (s.5F(2)(d)).

31. The Tribunal informed the applicant that, if the Tribunal relies on this information in making its decision, it may conclude that he does not meet three of the mandatory criteria for a spousal relationship within the meaning of s.5F of the Act. The consequence of this information being relied upon is that the Tribunal could not find that he meets the relevant clause/s of Schedule 2 to the Regulations.

32. The Tribunal invited the applicant to comment on or respond to the information by 19 May 2017.

    The response to the Tribunal’s combined letter

33. On 18 May 2017, within the timeframe for replying, the parties submitted comments in response.

34. The applicant did not make any submissions in relation to the validity of the non-disclosure certificate.

35. In respect of the adverse information that was communicated pursuant to s.359A of the Act, the applicant and the sponsor submitted that:

    the allegation to the tribunal is unfounded and borderline vindictive. Hanish and I are in a continuing committed relationship and have never separated contrary to the allegations submitted to the tribunal.

36. They also submitted timelines of events, entitled ‘brief account of life events after marriage’ and ‘residential history after marriage’ respectively, which referred to various documents that had been submitted to the Tribunal to corroborate the various claims. The submission also summarised and referred to letters from various family members, friends and others in the community in support of the relationship. They also referred the Tribunal to SMS/iMessages exchanged between the parties from 8 December 2015 and gave the Tribunal details of the sponsor’s Instagram and Facebook profile names. They concluded, ‘we believe we have provided enough information in response to the recent allegations’.

    The Tribunal’s conclusion on the allegation

37. The Tribunal has not given the allegation weight for a few reasons. First, the Tribunal notes that the allegation was made by an anonymous source (or sources) as the person/s making the allegations did not give their name/s, although they do state how it is that they claim to know the sponsor. The Tribunal’s practice is to place limited weight on anonymous allegations. Secondly, although the allegation is reasonably detailed, the Tribunal is concerned that some of the comments are speculative rather than firm allegations. For example, the source stated, ‘I didn’t know whether to believe that her marriage is a sham or not as she [being the person who allegedly disclosed that the marriage was a ‘sham’] was drunk that time’ and later stated, ‘my suspicion has been confirmed’ because of statements that were said to have been made to a third person. The Tribunal has formed the view that the source made the allegation on the basis of suspicion rather than first-hand knowledge or evidence. Finally, the Tribunal notes that, in the submissions of 16 March 2018, it was stated that the sponsor had completed her Graduate Diploma in Legal Practice in October 2017. In these circumstances, the Tribunal would expect the sponsor to be mindful of her obligations to a court—and by extension, to the Tribunal—and to have provided truthful information.

    The financial aspects of the relationship

38. 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.

39. The applicant appears to have sought to address the delegate’s concern that it was unclear how the parties have pooled and managed their finances as a couple.

40. The written submissions of 4 January 2016 (incorrectly referred to as ‘2015’ on the front page of the submissions but referred to throughout this decision as ‘2016’) and 16 March 2018 outline the parties’ claims as to the financial aspects of their relationship. The Tribunal notes that these submissions are very detailed. For example, the submissions of 4 January 2016 detail their then current sources of income and the amounts of money incoming from those sources, their then weekly spending and their financial plans. The submissions of 16 March 2018 are similarly detailed. These submissions provide evidence about both parties being joint beneficiaries of a low income health care card as well as giving information about their banking arrangements, motor vehicles that had been in their possession, joint debts and the sharing of day-to-day household expenses.

41. The Tribunal notes that there is corroborating documentary evidence in support of some, but not all, of the various claims. For example, the parties have provided evidence of their joint bank account with the Commonwealth Bank. The parties submitted statements from early in their relationship, such as the statement from 5 November 2012 to 5 May 2013 (which the Tribunal notes had not been provided to the Department) as well as statements from later periods such as some statements from 2015, 2016, 2017 and 2018. The most recent statement evidences various deposits as well as the regular use of the account for expenses such as transport, food and entertainment.

42. The Tribunal finds that the joint bank account with the Commonwealth Bank is the parties’ main joint asset. (There is evidence that their car was stolen and they decided to sell the replacement car that they had originally bought.) The parties claim to jointly owe a sum of money to the sponsor’s father. There is no corroborative evidence but the Tribunal nevertheless accepts the veracity of this claim. The Tribunal also accepts the evidence that, at the time of this decision, the applicant is primarily responsible for paying their day-to-day household expenses (rent, utility bills, food and other sundry expenses). For example, the Tribunal notes the sponsor’s completed rent certificate form of 17 March 2018 which was to be submitted to Centrelink. This states that the applicant was responsible for paying the full amount of the rent. The submissions state that the sponsor’s Newstart allowance is used to help pay the bills.

43. Outside of their marriage, the applicant and the sponsor do not appear to owe any legal obligation in respect of the other. The Tribunal notes that the Department’s file contains evidence that the sponsor had nominated the applicant as a beneficiary of her superannuation fund (to receive 70%) but no up to date evidence has been submitted to the Tribunal in this respect.

44. Notwithstanding that there are some gaps in the evidence, on the basis of the evidence before it, the Tribunal accepts the parties’ various claims about the financial aspects of the relationship.

45. The Tribunal gives some weight to the evidence of the financial aspects of the relationship.

    The nature of the household

46. 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.

47. There is no evidence that the parties have children together or at all and no evidence of any joint responsibility for the care and support of children.

48. Again, the applicant has sought to address the delegate’s concern that there was no, or limited, documentary evidence to demonstrate that the parties live together and to support his claims about the nature of the household.

49. The written submissions of 4 January 2016, 18 May 2017 and 16 March 2018 outline the parties’ claims as to the nature of the household. The submissions detail the places and times that the parties have lived together and the short periods when they have not, including giving explanations for those periods.

50. The evidence before the Tribunal is that the parties have lived together (in the sense of establishing a household) in two properties throughout their relationship: a four bedroom property in Springvale South and the current one bedroom flat in Glen Huntly. The Tribunal notes that the parties have submitted statements from friends (including a former housemate), family members, neighbours and their current landlord as well as correspondence from real estate agents which suggest that the parties have lived together in these two properties as claimed.

1. The Tribunal accepts the applicant and the sponsor’s evidence in the various submissions as to their joint responsibility for housework, including the care of their pets.

2. On the basis of the evidence before it, the Tribunal accepts the various claims about the nature of the household. The Tribunal gives weight to the evidence of the nature of the household.

   The social aspects of the relationship

3. 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.

4. The written submissions of 4 January 2016, 18 May 2017 and 16 March 2018 also detail the parties’ claims as to the social aspects of their relationship. Much evidence was submitted in support of the various claims made. The Tribunal also notes the claim made in the submissions of 4 January 2016 that ‘[t]here are over 1000 more photos and videos that will be brought to the hearing to provide proof of their joint activities’.

5. It is worth noting that the submissions of 4 January 2016 respond in detail to the delegate’s concerns stemming from the interviews conducted at the site visit in India.

6. The Tribunal also notes that the applicant has submitted photographic evidence to address the delegate’s concern that he had not supported his claim that his brother and sister had formally met the sponsor when they visited Australia. He also submitted photographs (with accompanying descriptions) from his father’s visit to Australia as well as a statement from the sponsor and photographs of her time visiting the applicant’s family in India (including the reasons why she travelled alone). The applicant also submitted statements made by his father, mother, brother and sister in March 2018 (including notarised translations of those statements) about their knowledge of the applicant’s spousal relationship with the sponsor and their interaction with the parties.

7. The Tribunal accepts the arguments made in the submissions of 4 January 2016 and the evidence given in the statements made by the applicant’s family members in India. Accordingly, the Tribunal does not share the delegate’s concerns about the interviews conducted during the site visit in India.  

8. The Tribunal has reviewed and considered the many Form 888 statutory declarations and statements that have been made by the parties’ friends and family members. The Tribunal notes that the declarants have known the parties for a number of years, are aware of their spousal relationship and that their reasons for considering the parties’ spousal relationship to be genuine and continuing are, on the whole, well considered and detailed.

9. From the voluminous documentary evidence before it (including photographs and printouts from Facebook), the Tribunal accepts that the applicant and the sponsor have represented themselves socially to their families and to their friends as a couple and that they continue to do so at the time of this decision.

10. The Tribunal also notes and gives weight to the evidence of holidays and other outings that the couple have taken together over the years.

11. In view of the evidence before the Tribunal, the Tribunal places great weight on the social and public recognition of the relationship.

    The nature of the person’s commitment to each other

12. 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 person’s commitment to each other.

13. The evidence before the Tribunal is that the parties have been in an exclusive and committed relationship since the applicant’s birthday in June 2011, having first met in September 2009 through the applicant’s friend Sam who was the sponsor’s then boyfriend.

14. As noted earlier, the parties married on 31 October 2012. The Tribunal notes that the applicant was 25 years of age at that time and that the sponsor was 24 years old. In the written submissions of 16 March 2018, they wrote, ‘[l]ooking back, we got married earlier than both of us anticipated’. The submissions continued:

    However, it was one of the best decisions we’ve made at the time. Neither of us could think about being separated nor forced to be away from each other. We have [been] through many ups and downs over the years but we have stayed strong.

15. The parties also provided photographs of their Halloween-themed wedding and a list of the guests who attended. In the most recent submissions, they stated, ‘[i]n hindsight, a themed wedding was not appropriate but it was what Mary wanted at that time’.

16. The evidence is that they have been living together since October 2012 although there were some periods where the parties lived temporarily apart (which, as noted earlier, were explained).

17. The Tribunal gives weight to the length of the relationship (over eight and a half years) and the length of time that the parties have lived together.

18. The Tribunal has taken into account the parties’ respective ages, backgrounds and life experiences and accepts that, at the time of this decision, neither party is in a relationship with any third party.

19. The Tribunal notes the emails and voluminous text messages exchanged between the parties that were submitted to the Tribunal. The Tribunal accepts that these frequent and ongoing communications between the parties are indicative of their genuine commitment to the relationship.   

20. With respect to companionship and [support], the Tribunal notes the extensive submissions made addressing this factor in March 2018. The Tribunal notes that there is corroborative evidence from a [medical professional] that the applicant has experienced [a medical condition], amongst other conditions, following an alleged assault in June 2016. The Tribunal finds that, throughout their relationship, including at the time of this decision, the applicant and the sponsor have provided each other with companionship and emotional support.  

21. The submissions of 16 March 2018 also directly address the issue of whether the persons see their relationship as long-term. The Tribunal notes that those submissions state, amongst other things, that if the applicant is refused the Partner visa that they have considered a permanent move to the Philippines. In light of the evidence that is before the Tribunal, the Tribunal finds that the parties see their relationship as long-term.

22. Accordingly, the Tribunal is satisfied, considering all of the evidence cumulatively, that the applicant and the sponsor have demonstrated, and continue to demonstrate, a level of commitment to one another and to their relationship as contemplated in the Regulations.

23. The Tribunal places weight on the nature of each person’s commitment to the other.

    CONCLUSION

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

25. For the reasons given with respect to the r.1.15A(3) matters, the Tribunal is satisfied that, at the time of this decision, the applicant and the sponsor:

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

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

    ·live together, as required by s.5F(2)(d)(i) of the Act.

26. Given these findings, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.221(2)(c).

27. 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 801 visa.

    DECISION

28. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(2)(c) of Schedule 2 to the Regulations

    Justine Clarke
    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).