Mohan (Migration)

[2024] AATA 813

Mohan (Migration) [2024] AATA 813 (9 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Rekha Mohan

REPRESENTATIVE:  Mr Abdul Hamid Ajiz

CASE NUMBER:  1828628

HOME AFFAIRS REFERENCE(S): BCC2017/3385002 BCC2018/4746072 BCC2018/4746082

MEMBER:Deputy President Justin Owen

DATE:9 April 2024

PLACE OF DECISION:  Sydney

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) of Schedule 2 to the Regulations

·cl 820.221(2) of Schedule 2 to the Regulations

Statement made on 09 April 2024 at 4:28pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship before death of sponsor – valid and long marriage, separation, sponsor’s comparatively short other relationship and reconciliation – financial support during other relationship – sponsor’s health and applicant’s care – personal and cultural ties with children, grandchildren and community – significant and voluminous evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 820.211(2)(a), 820.221(2)

CASE
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 September 2017 on the basis of her relationship with her 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.

3. The delegate refused to grant the visa on the basis that the first-named applicant did not satisfy cl 820.211(2)(a).  The delegate was not satisfied at the time of application the applicant was either the spouse or the de facto partner of the sponsoring partner as defined under s 5F and s 5CB respectively. The applicant applied to the Tribunal for review of the delegate’s refusal on 30 September 2018.

4. The applicant appeared before the Tribunal on 14 February 2023 and, after the matter was reconstituted from Member Matheson to Deputy President Owen, on 9 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence at both hearings from Ms Soloni Mohan, who is the applicant's daughter. The Tribunal hearings were conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearings.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, the applicant claims that the relationship with the sponsor has ceased due to the death of her sponsor.

8. At the Tribunal’s hearing, the applicant discussed the development of her former relationship with her husband and sponsor, her marriage and cohabitation with the sponsor, and the death of her sponsor in March 2021 at Blacktown Hospital.

   Whether the parties were in a spouse or de facto relationship

9. 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 was an Australian citizen.  

10. ‘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.

    Are the parties validly married?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided the delegate with a copy of her marriage certificate with the sponsor dated 28 January 1983. The Tribunal accepts that the parties were lawfully married on that date.  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?

12. To be granted a provisional (temporary) Partner visa (such as the Subclass 820 visa in this case), the applicant must be in a spouse or de facto relationship at the time of application.  The applicant must continue to be in this relationship at the time of decision on the provisional visa application; and for the grant of a permanent visa, the visa applicant must continue to be in a spouse or de facto relationship at the time of decision on the permanent visa application, which is usually a period of at least two years after the application is made. 

13. There are limited exceptions to the requirement of a continuing relationship. A Subclass 820 Partner visa may still be granted despite the relationship ceasing in circumstances where:

    ·the relationship has ceased because the sponsoring partner has died;

    ·the sponsoring partner has committed domestic/family violence against the applicant or a member of the family unit of the applicant; or

    ·both the applicant and the sponsoring partner have an ongoing connection to a child.

14. In this case, the applicant claims to have been in a spousal relationship with the sponsor at the time of application in September 2017.  She states the relationship has ceased due to the death of the sponsoring partner.

15. The applicant has submitted the New South Wales Death Certificate of her husband dated 6 May 2021.  It states the sponsor deceased at Blacktown Hospital on 21 March 2021.  The Tribunal accepts the sponsor deceased on this date. 

16. The Tribunal has noted the transcript from the hearing of 14 February 2023, the voluminous documentary evidence provided to the delegate and the Tribunal, as well as the testimony at the hearing of 9 April 2024. 

17. The Tribunal considers the evidence of the existence of a genuine spousal relationship between the applicant and sponsor at the time of application is significant.  The parties have a long history.  They met in January 1983 and married in June that year before having two children together, Ms Soloni Mohan (who provided oral testimony at the Tribunal’s hearings) and Sumit Mohan who both migrated to Australia in 2006.  The applicant has submitted that she and the sponsor did break up since their marriage, with the sponsor in another relationship between January 1990 and November 1994.  After the cessation of this relationship the sponsor travelled to India to be with the applicant.

18. The applicant discussed the development of the sponsor’s health conditions.  She stated he became sick initially in 2018 and deteriorated from therein.  She explained that the sponsor was on oxygen 24 hours a day and she was both caring for him at home as well as taking him to the hospital on an increasingly frequent basis after 2020.  The applicant stated that she assisted the sponsor with all aspects of his living as his health declined.  The Tribunal notes the corroborative evidence including the photographs of the parties together.  The Tribunal accepts the applicant was the primary carer for the sponsor, her husband, as his health deteriorated. 

19. In relation to her cultural and personal ties to the community, the applicant stated she has two children along with two grandsons in Australia. The applicant also has strong ties through the Hindi community in Australia and through her temple.  For the purposes of cl 820.221(2)(c), the Tribunal is satisfied the applicant has strong personal and cultural ties to the Australian community through her children, her grandchildren, and the wider local community.   

20. In respect of the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the joint ownership of real estate or other major assets; joint liabilities; the extent of any pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day expenses.

21. In relation to the financial aspects of the relationship, the Tribunal notes the evidence the late sponsor was placing money into the applicant and sponsor’s joint Indian bank account, whilst the parties also utilised a joint Westpac bank account.  The sponsor was putting the monies he earned through his job as a taxi driver into the Westpac account.  The evidence suggests that the applicant and sponsor each had a debit card linked to the joint account and both were utilising the account.  The Tribunal notes the evidence that the applicant and the sponsor also owned property jointly together in India.  The sponsor also had a will that bequeathed most of his assets to the applicant with some land properties going to his two brothers.  The Tribunal notes the evidence that the $50,000 that was in the late sponsor’s superannuation account was left to the applicant and went into the joint Westpac bank account after his death.  The Tribunal finds the applicant and sponsor had joint ownership of real estate or other major assets; had joint liabilities; were pooling their financial resources extensively shared their day-to-day expenses; and owed legal obligations to each other via a will and through the late sponsor’s superannuation.  The Tribunal is satisfied that the parties combined their financial affairs, such as the sponsor sending the applicant monies over the years which speaks, in the Tribunal’s opinion, to the genuineness of the parties’ claims. The Tribunal has considered the financial aspects of the relationship and finds it is satisfied that they strongly speak to the genuineness of the relationship between the applicant and sponsor at the time of application.

22. The Tribunal has considered the nature of the parties’ household, including any joint responsibility for the care and support of children; the parties’ living arrangements; and any sharing of housework.

23. The applicant submitted that she and the sponsor lived together in Toongabbie with their son who was disabled having had an arm amputated.  The sponsor helped care for their son when he was not driving his taxi.  The applicant explained that she would do the cooking and household chores whilst the sponsor would take her shopping.  She stated the sponsor always looked after her until he became sick. The Tribunal has considered the nature of the parties’ household and finds it is satisfied that they speak to the genuineness of the relationship between the applicant and sponsor at the time of application.  The Tribunal notes the evidence that the sponsor came to Australia in 1986 and he eventually ended up in a relationship with another woman.  In 1994 after the end of the relationship, he returned to India and the applicant.  Whilst the Tribunal considers the explanation of events and the parties’ living arrangements between 1986 and 1994 somewhat confusing, the Tribunal notes its task is to consider whether the applicant and sponsor were sharing a residence together as spouses at the time of application.  The Tribunal is satisfied on the evidence they were doing so.  The Tribunal has considered the nature of the parties’ household and finds it is satisfied that it speaks to the genuineness of the relationship between the applicant and sponsor at the time of application.

24. The Tribunal has considered the social aspects of the relationship between the applicant and sponsor, including whether they represented 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 they plan and undertake joint social activities.  The Tribunal has taken into account the extensive photographic evidence of the applicant and sponsor together with family and friends, including when he was gravely ill as well as the statements attesting to the genuineness of the relationship. 

25. The applicant submitted that she and her late sponsor were spending time with their friends and their children, including attending Temple and going shopping together.  Significant events had included the wedding of their daughter.

26. The Tribunal has considered the social aspects of the parties’ relationship and finds it is satisfied that it speaks to the genuineness of the relationship between the applicant and sponsor at the time of application. The Tribunal is satisfied that the parties’ relationship was commensurate with that of a couple in a genuine and ongoing long-term spousal relationship. The Tribunal is satisfied that the parties were representing themselves as being in a spousal relationship.

27. The Tribunal has considered the duration of the relationship between the applicant and her late sponsor; namely the length of time the applicant and sponsor lived together; the degree of companionship and emotional support they drew from each other; and whether they saw the relationship as long-term.

28. The applicant states that she met her late husband at her aunt’s place in January 1983 before a relationship developed and they married on 28 June 1983.  The applicant stated that she most recently had travelled to Australia between December 2015 and March 2016; March 2016 until June 2016; and June 2017 until the lodgement of the application in September 2017 and on each occasion she lived with her sponsor.     

29. The applicant concedes that for some years: 1990 to 1994 -  the sponsor was in a relationship with another woman in Australia.  The claim is made however that the sponsor continued to financially support the applicant and his children during this period.  The evidence suggests the applicant accepted the sponsor entering another relationship for a time period.  The Tribunal accepts nevertheless that the late sponsor did continue to financially support the applicant and their children during this period. 

30. The Tribunal accepts that the applicant saw the relationship with the sponsor as long-term and accepts she was drawing companionship and emotional support from her late husband.  The question before the Tribunal is whether by the time of the lodgement of the application in 2017 whether both parties were committed to a genuine and continuing spousal relationship together.  The Tribunal is satisfied that both of the parties were.  The Tribunal has placed significant weight on the fact the sponsor bequeathed his superannuation and assets to the applicant. The Tribunal notes the sponsor appointed the applicant as his enduring guardian as his health deteriorated.  The Tribunal considers the evidence suggests the sponsor was providing regular and consistent financial support to the applicant and their children over many years through their joint Australian and Indian bank accounts.  The Tribunal accepts that in 2017 the applicant and sponsor were living together (both in Australia and India at households they had both established) and they were drawing significant companionship and emotional support from each other.   The Tribunal accepts that the parties each viewed the relationship as long-term and there was a genuine commitment to each other.  The evidence of the care and support the applicant provided the sponsor as his health fell away is significant and, in the Tribunal’s opinion, speaks to the commitment of the parties at the time of application. 

31. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time the visa application was made in 2017. The applicant meets cl 820.211(2).

32. The Tribunal has carefully considered the evidence before it and accepts that the spousal relationship between the applicant and the sponsor was genuine, continuing, and would have continued but for the death of the sponsor in March 2021.

33. For the purposes of cl 820.221(2), the Tribunal finds the applicant would continue to meet the requirements of cl 820.211(2) except (a) that the sponsoring partner has died; and (b) the applicant would have continued to be the spouse partner of the sponsoring partner if the sponsoring partner had not died; and (c) the applicant has developed close cultural and personal ties in Australia.

34. Therefore the applicant meets cl 820.211(2) and cl 820.221(2).

35. 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

36. 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) of Schedule 2 to the Regulations

    ·cl 820.221(2) of Schedule 2 to the Regulations

    Justin Owen
    Deputy President

    
    

    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).