Malhi (Migration) - [2017] AATA 2516

Malhi (Migration) [2017] AATA 2516 (1 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Amanpreet Singh Malhi
CASE NUMBER:  1702613
DIBP REFERENCE:  CLF2011/173434
MEMBER:Rosa Gagliardi
DATE:1 September 2017
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.801.211 of Schedule 2 to the Regulations; and
·cl.801.221 of Schedule 2 to the Regulations.

Statement made on 01 September 2017 at 3:56pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Valid marriage – Joint household assets – Joint overseas travel – Long-standing relationship
LEGISLATION
Migration Act 1958 ss 5F, 5F(2)(a)-(d), 65
Migration Regulations 1994 rr 1.15A, 1.15A(3), Schedule 2 cls 801.211, 801.221, 801.221(2), 801.221(2)(c)
CASES
Mahli v MIBP [2017] FCCA 119
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 23 January 2014 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 13 October 2011 on the basis of his relationship with his sponsor. At that time, 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 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. Relevantly to this matter the primary criteria include cl.801.211.
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.211 and cl.801.221 because there was insufficient evidence to be satisfied that the parties are in a genuine and continuing spousal relationship as set out in Regulation 1.15A, among other things.
On 20 March 2015 the Tribunal as it is currently constituted made a decision to affirm the department’s decision to refuse the visa on the basis that it had concerns about whether the relationship had been entered into for the sole purpose of the applicant gaining a migration outcome.
In Mahli v MIBP [2017] FCCA 119, the Federal Circuit Court of Australia found, however, that among other things, “…the proper construction of sub-s.5F(2)(c) of the Act is that the focus of that provision is about the relationship, such as it is. It is not to be qualified by attention to whether or not the quality of that relationship otherwise answers the description of a married relationship of husband and wife.” And further, “There is no authority as to what is contemplated by the requirement that the relationship be ‘genuine and continuing’. The assessment as to whether the relationship is genuine and continuing must focus on the relationship…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] AATA 2516
Decision Date: 1 September 2017

CaseChat Overview and Summary

This matter concerned an application for a Partner (Residence) (Class BS) visa, Subclass 801. The applicant sought to establish that they were in a spouse relationship with the sponsoring partner, an Australian citizen. The Tribunal was required to consider whether the parties met the criteria for a genuine and continuing spousal relationship as defined by the Migration Act 1994 and the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the parties were validly married and whether they met the other requirements for a spousal relationship under the Act. Specifically, the Tribunal had to determine if there was a mutual commitment to a shared life to the exclusion of all others, if the relationship was genuine and continuing, and if the parties lived together or did not live separately and apart on a permanent basis. The Tribunal was also required to consider all circumstances of the relationship, including financial and social aspects, and the nature of the household, as outlined in regulation 1.15A(3).

The Tribunal found that the parties were validly married on 23 September 2011, satisfying the requirement of s.5F(2)(a) of the Act. The evidence also indicated a pooling of financial resources, including joint bank accounts and a joint loan, demonstrating financial commitment to the shared household. The Tribunal concluded that the applicant met the criteria under cl.801.211 and cl.801.221 of Schedule 2 to the Regulations. Consequently, the Tribunal remitted the application for reconsideration by the Minister with a direction that the applicant met these specified criteria.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Tribunal would like to emphasise that this case does not have any precedential value because the circumstances and facts are particular to this matter only. In the Tribunal’s view it is a relevant consideration if the applicant enters a relationship for the sole purpose of attaining a migration outcome and the evidence does not otherwise point to a genuine and continuing spousal relationship.CONSIDERATION OF CLAIMS AND EVIDENCESPOUSE/DEFACTO (cl.801.221(2))Whether the parties are in a spouse or de facto relationship Relevantly to this matter, cl.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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was 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. ‘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? If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The evidence demonstrates that the parties wed on 23 September 2011. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).Are the other requirements for a spousal relationship met? The sponsor is financially established in that she has purchased her own unit prior to marriage to the applicant and she does not have a mortgage on this property. The evidence indicates that the applicant provides financially towards the household, including to body corporate fees and other household utility items. The applicant had his own bank account which then became a joint account reflecting deposits of cash payments by the applicant consistent with his statements at hearing that he contributed cash payments to their pooled financial resources. More recent joint bank account transaction records have been submitted from December 2014 through to June 2017, detailing purchases for a household and other routine purchases that would indicate the funds are being used for the shared household. In addition, the parties have submitted evidence of a joint loan account of $18,469.38 taken out over three years from 20 January 2015.

Decision

Reasons for decision

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 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.801.211 of Schedule 2 to the Regulations; and·cl.801.221 of Schedule 2 to the Regulations.Rosa GagliardiMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).

Ratio Decidendi

Legal Principle Established

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.801.211 of Schedule 2 to the Regulations; and·cl.801.221 of Schedule 2 to the Regulations.Rosa GagliardiMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).