Mandeep Singh (Migration) - [2024] AATA 1442

Mandeep Singh (Migration) [2024] AATA 1442 (27 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mandeep Singh
REPRESENTATIVE:  Ms Stephanie Victoria Arcia (MARN: 1687634)
CASE NUMBER:  2117394
HOME AFFAIRS REFERENCE(S):          BCC2019/2572961
MEMBER:Brygyda Maiden
DATE OF ORAL DECISION:  27 March 2024
TIME OF ORAL DECISION:  11:06am
DATE OF WRITTEN DECISION:              21 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(a) of Schedule 2 to the Regulations; and
·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 21 May 2024 at 8:25am
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – marriage delayed by COVID and parents’ expectations – shared household expenses and finances since marriage – period of separation for employment – shared responsibility for housework – civil wedding before approved religious wedding – support testimonies of family and friends – emotional support – decision under review remitted
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
Jayasinghe v MIMA [2006] FCA 1700
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 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”).
The applicant, and Indian national, applied for the visa on 16 May 2019 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied that the applicant met the definition of spouse or de facto partner as defined under sections 5F and 5CB respectively of the Act.
The Tribunal notes that a significant amount of relevant evidence has been submitted by the applicant since the delegate’s decision.
The applicant appeared before the Tribunal on 27 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review.
These are the reasons for the Tribunal’s oral decision on 27 March 2024 that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue, in the present case, is whether the applicant is the spouse or de-facto partner of the sponsor as defined under s 5F or…

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.

Continue reading Mandeep Singh (Migration)

Details

AGLC: Mandeep Singh (Migration) [2024] AATA 1442
Case: [2024] AATA 1442
Decision Date: 27 March 2024

CaseChat Overview and Summary

The case of Mandeep Singh (Migration) concerned an application for a Partner (Temporary) (Class UK) visa, subclass 820. The applicant sought review of a decision to refuse this visa. The central dispute revolved around whether the applicant and the sponsor were in a genuine and continuing married relationship, as defined by section 5F of the Migration Act 1958 (Cth). The matter was heard by Brygyda Maiden, a Member of the Tribunal.

The legal issues before the Tribunal were whether the applicant was the spouse or de facto partner of the sponsor, as defined by the Act, and specifically whether the parties were in a married relationship that was valid for the purposes of the Act, demonstrated a mutual commitment to a shared life to the exclusion of others, was genuine and continuing, and involved living together or not living separately and apart on a permanent basis. The Tribunal was required to consider all circumstances of the relationship, including financial and social aspects, the nature of their household, and their commitment to each other, as outlined in regulation 1.15A(3). The Tribunal also had to consider evidence of events subsequent to the visa application, provided it logically tended to show the existence or non-existence of relevant facts.

The Tribunal's reasoning focused on the definition of a "spouse" under section 5F of the Act. Despite initial parental disapproval and a delay in the religious wedding due to COVID-19 and cultural expectations, the Tribunal found that the parties had entered into a civil marriage on 13 March 2019. Evidence presented, including photographs of the civil ceremony and marriage certificate, supported this finding. Furthermore, the Tribunal considered the parties' joint relationship statement, their communication history, and the applicant's gift of a diamond ring, all of which indicated a genuine and continuing commitment. The Tribunal also addressed allegations of a contrived relationship, noting that it had provided the applicant with an opportunity to respond to information received from an anonymous source and Departmental screenshots. Ultimately, the Tribunal was satisfied that the requirements of section 5F(2) of the Act were met at the time of the visa application and at the time of the decision.

Consequently, the Tribunal found that the applicant met the criteria specified in clause 820.211(2)(a) and clause 820.221 of Schedule 2 to the Migration Regulations 1994 (Cth). Therefore, the Tribunal remitted the application for the visa to the Minister for consideration of the remaining criteria for a Subclass 820 visa.

Orders

Orders of the court

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Background

Background to the litigation

‘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 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.Relationship background According to the parties’ joint relationship statement on the Department file dated 14 May 2019, the applicant sent the sponsor a request on Facebook. She did not accept it as she had not seen him around. She subsequently saw him at the Shepparton Sikh Temple and after seeing him she accepted his request. The parties messaged each other, became good friends and started calling each other and going out for coffee or lunch. The sponsor messaged the applicant and told him that she liked him and asked him to go out with her on 29 November 2015, to which he agreed. On the sponsor’s 18th birthday the applicant purchased her a diamond ring, and the parties were married on 13 March 2019. The Department file contains photographs of the parties at the Shepparton Law Court with the sponsor holding the parties marriage certificate. There are also photographs with others on that day. According to the representative’s submissions dated 25 June 2023, it “is not customary in the Sikh religion for a boy and a girl to begin a relationship prior marriage…the relationship between the Applicant and Sponsor was one that was kept quiet for many years. The applicant and Sponsor have both emphasised the strong requirement for religious marriage in order to be accepted as a couple within their community and especially with regards to the Sponsor’s parents accepting the relationship.” The sponsor’s father was contacted in approximately June or July 2018 by someone in the community to advise him that the sponsor was with a man when she ought to have been at school. The sponsor then informed her parents of the parties’ relationship and her desire to marry the applicant. At that time, the sponsor’s parents did not approve of the parties’ relationship. Despite this, the parties were married in a civil marriage ceremony on 13 March 2019. However, even though the parties’ were already married, the Sikh religion requires the marriage to be legitimised through a Sikh ceremony.

Evidence

Evidence Before The Court

These are the reasons for the Tribunal’s oral decision on 27 March 2024 that the matter should be remitted for reconsideration. CONSIDERATION OF CLAIMS AND EVIDENCE The issue, in the present case, is whether the applicant is the spouse or de-facto partner of the sponsor as defined under s 5F or s 5CB respectively of the Act. Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal. Accordingly, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.Pre hearing s 359A of the Act invitation On 5 March 2024, the Tribunal wrote to the applicant notifying the applicant that the Tribunal received a s 376 of the Act non-disclosure certificate dated 30 November 2021 issued by the Department of Home Affairs which was revoked on 20 February 2024. The Tribunal attached the initial certificate and revocation. The Tribunal also attached the new s 376 of the Act non-disclosure certificate issued on 20 February 2024. The Tribunal explained that it had formed the initial view that the certificate was valid and invited submissions on the validity of the certificate by 19 March 2024. The Tribunal also exercised its discretion to disclose the gist of the certificate under s 359A of the Act and invited the applicant to comment on or respond to information which the Tribunal considers would subject to the applicant’s comments or response, be the reasons or part of the reason for affirming the decision under the review. The Tribunal made clear it had not made up its mind about the information. The Tribunal gave the applicant until 19 March 2024 to respond.The particulars of the information are that documents CLD2021/34070293 and CLD2021/34070117 contain:a.information from an anonymous source on 15 August 2021 reporting that Gaurveen [sic] Kaur (which appears to be reference to your sponsor) was involved in payment for marriage and false documents. Details of a third party were also provided but will not be disclosed for privacy reasons.b.Department screen shots that indicate that an allegation was received pertaining to a possible contrived relationship with your sponsor.The information is relevant to the review because it may lead the Tribunal to doubt you are in a genuine and continuing relationship with your sponsor and doubt that you lived together as claimed. In order for you to be granted the visa, the Tribunal needs to be satisfied that the relationship between you and your sponsor is genuine and continuing as per s 5F(2)(c) of the Act.The consequences of the Tribunal relying on this information is that it may lead it to find that you are not a ‘spouse’ of your sponsor within the meaning of s 5F of the Act, and as a consequence, that you do not satisfy cl 820.211 and cl 820.221 of Schedule 2 to the Migration Regulations 1994 (Cth) for the grant of a Partner (Temporary) (Class UK) visa. This would be the reason, or a part of the reason for the Tribunal to affirm the decision of the delegate to refuse your visa.

Decision

Reasons for decision

On the basis of the above, the Tribunal is satisfied that the requirements of s 5F(2) of the Act are met at the time the visa application was made and at the time of this decision. Therefore, the applicant meets cl 820.211(2)(a) of Schedule 2 to the Regulations; and cl 820.221 of Schedule 2 to the Regulations. 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 820 visa.DECISION The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:·cl 820.211(2)(a) of Schedule 2 to the Regulations; and·cl 820.221of Schedule 2 to the Regulations.Brygyda MaidenMember

Ratio Decidendi

Legal Principle Established

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