Parvati (Migration)
[2022] AATA 3690
•7 October 2022
Parvati (Migration) [2022] AATA 3690 (7 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mrs Parvati Parvati
REPRESENTATIVE: Mr Surendra Man Shrestha (MARN: 9578885)
CASE NUMBER: 1822224
HOME AFFAIRS REFERENCE(S): BCC2016/2721152
MEMBER:Cheryl Cartwright
DATE:7 October 2022
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
·cl 820.221(1) of Schedule 2 to the Regulations
Statement made on 07 October 2022 at 3:02pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and ongoing relationship – shared responsibilities for household expenses – managing the sponsor’s health issues – witnesses to the relationship – mutual emotional support – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700STATEMENT 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 applied for the visa on 17 August 2016 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because there was insufficient information to demonstrate that the applicant was the spouse or de facto partner of the sponsor, as defined under section 5F and 5CB of the Migration Act.
The applicant appeared before the Tribunal on 6 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Neville Pell, the sister of the applicant, Ms Kanta Pillay, a friend of the applicant, Mr Suresh Shanmugan and a friend of both parties, Mr Rafet Kacak. A long-term friend of the sponsor, Mr John William Burdett, provided a witness statement via telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Consideration of claims and evidence
The issue in the present case is whether, at the time of application on 17 August 2016 the applicant and the sponsor were spouses for the purposes of the Act.
As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:
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.
In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.
In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 820.221 (a time of decision criterion) as well.
Whether the parties are in a spouse or de facto relationship
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.
The applicant claims to be the spouse of the sponsor who is an Australian citizen. A copy of the sponsor’s registered birth certificate evidencing that he was born in Australia is on the Tribunal’s file. From the evidence before it, the Tribunal is satisfied that the sponsor is an Australian citizen.
‘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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in Springvale South, Victoria, on 1 August 2016 and a copy of the marriage certificate 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).
Are the other requirements for a spouse relationship met?
Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other.
In considering these issues, the Tribunal has had regard to all the documents on the Department’s file and the Tribunal’s file.
The financial aspects of the relationship
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.
There is no evidence before the Tribunal that, at either at the time of application or at the time of this decision, the applicant and the sponsor jointly owned or own real estate or other major assets; that they had or have any joint liabilities; or that one person in the relationship owed or owes any legal obligation in respect of the other.
The parties submitted bank statements for both a joint account and the sponsor’s account. From their statements provided to the hearing, neither the applicant nor the sponsor regularly used the joint account. The applicant has no income and the applicant stated that her sister, Ms Kanta Pillay, used the joint account to deposit money occasionally when required by the applicant.
The sponsor confirmed to the hearing that his bank account was mainly used by the parties for household expenses. The parties would do the shopping together and the applicant would provide advice regarding purchases. The applicant does not have access to the sponsor’s bank account (“she wouldn’t know how to use the PIN”) but is closely involved in household expenditure decisions.
The Tribunal notes that, at the time of application, the delegate gave weight to the lack of use of the parties’ joint account and the fact that the applicant was not named on the sponsor’s bank account. In the delegate’s decision, the delegate formed the view that “the joint account was opened solely for the purpose of showing evidence to the Department” about the relationship. The Tribunal agrees with this assessment about the joint account; however, is satisfied that, given the age of the parties, and their joint participation in the use of the sponsor’s account, the parties have demonstrated that they share responsibilities for household expenses.
The Tribunal accepts that at the time of its decision the parties share responsibility for household expenses and gives positive weight to the financial aspects of the relationship.
The nature of the household
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. There is no evidence before the Tribunal that the applicant and the sponsor have any children together.
The parties gave independent and consistent evidence that the applicant undertakes all household chores, such as cooking and cleaning. They have assistance from outside parties with regard to gardening and lawn mowing.
The applicant stated that she has a vege garden at the house. The witness, Mr Burdett, stated that he had visited the house many times and often had found the parties working together in the vege garden.
The parties gave independent and consistent evidence that a nurse attends to the sponsor twice a week for his diabetes and that the lockdown period during COVID was a difficult time for them both.
The applicant and the sponsor confirmed that the sponsor has many health issues, including a recent diagnosis of Alzheimer’s Disease. The applicant stated that she would always remind the sponsor about his medication. The sponsor stated that many days he is able to manage normally, but occasionally is in “a fog” and finds it difficult to communicate. The Tribunal notes the sponsor spoke very clearly at the hearing.
The parties provided photographs of themselves in their home together.
The sponsor stated that the parties had found it difficult to find a way to demonstrate their affection and close relationship for the benefit of the Tribunal, given they are now in their 70s and their intimacy is not the same as that of young people.
The Tribunal notes that, in the Department’s decision, the delegate was not satisfied that the parties lived together as a couple.
The Tribunal is satisfied that the evidence provided to it is indicative of a spousal relationship both at the time of application and at the time of the Tribunal’s decision.
The social aspects of the relationship
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.
With respect to whether the persons represent themselves to other people as being married to each other, the Tribunal notes that the four witnesses at the hearing mentioned their knowledge that the applicant and the sponsor are married. In all of the independent statements from the witnesses, there is reference to a committed and loving relationship.
The parties provided independent and consistent statements that they have socialised less in the past year than in previous years (before COVID), mainly because of the sponsor’s ill health. They mainly go to the local shopping plaza where the sponsor meets and chats with many local friends and acquaintances.
The parties provided some annotated photographs of socialising with friends and family. The Tribunal gives some weight to these pictures.
In the Department’s decision on 20 July 2018, the delegate gave no weight to statutory declarations provided to the Department or on the social aspects of the relationship. The Tribunal notes the delegate’s finding.
However, in view of the evidence presented to the hearing on 6 October 2022, the Tribunal is satisfied that at the time of the application and at the time of this decision the persons have represented and do represent themselves to other people as being married to each other.
The nature of the persons’ commitment to each other
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 persons’ commitment to each other.
Both the applicant and the sponsor provided details to the hearing of the inception and development of their relationship. The sponsor had visited the applicant’s sister’s house, and the visits increased as did their contact with each other. They would tend to the garden together. They started going out together for coffee and, initially, the applicant’s sister would need to assist with translations for their conversations. Having regard to all the evidence before it, the Tribunal accepts the claims about the inception and development of the claimed partner relationship.
The Tribunal has taken account of the parties’ respective ages, backgrounds and life experiences and accepts that both at the time of application and at the time of decision, neither party was nor is in a relationship with any third party.
The Tribunal accepts and gives weight to the evidence that, at the time of application on 17 August 2016, the parties had been married for less than one month and that, at the time of this decision, they have been married for six years. The Tribunal accepts that the applicant and the sponsor have lived together as claimed for six years and gives weight to this length of time.
Each of the witnesses stated to the Tribunal that they regularly attended the house of the parties for dinner or coffee or for social visits. Each of the witnesses told the Tribunal that the applicant and the sponsor are in a loving relationship.
The applicant indicated a strong commitment to tending to the sponsor’s health requirements but also enjoys going to the local plaza with the sponsor where he chats with friends and acquaintances. The parties indicated a strong understanding of each other’s needs.
With respect to the degree of companionship and emotional support that the persons draw from each other and whether they see their relationship as being for the long term, the Tribunal gives great weight to the evidence provided by the parties and the witnesses at the hearing.
The Tribunal places great weight on the evidence of the nature of the persons’ commitment to each other. In the Tribunal’s view, this evidence is strongly suggestive that the parties have a mutual commitment to a shared life to the exclusion of all others, they have a genuine and continuing relationship and they live together, not separately and apart on a permanent basis.
The Tribunal is satisfied that at the time of application and at the time of this decision the parties were and are in a committed spousal relationship.
Other considerations
The Tribunal noted that the Department had received in March 2017 an allegation from a member of the public which alleged that Ms Parvati’s relationship with Mr Pell is contrived for the purpose of securing a permanent visa. The Tribunal also noted that this information is the subject of a non-disclosure certificate which the Tribunal considers to be valid.
The applicant had, at an earlier Tribunal hearing on 19 June 2017, received an opportunity to comment on the information and had said that it was not correct, and that her relationship with Mr Pell is genuine.
The Tribunal gives no weight to the allegation.
CONCLUSION
As stated above, the Tribunal is satisfied that the applicant and the sponsor are validly married, as required by s 5F(2)(a) of the Act.
After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, both at the time of application on 17 August 2016 and at the time of this decision, the applicant and the sponsor:
·had and have a mutual commitment to a shared life as wife and husband to the exclusion of all others, as required by s 5F(2)(b) of the Act;
·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and
·lived and live together as required by s 5F(2)(d)(i) of the Act.
Given these findings, the Tribunal is satisfied that, at the time the visa application was made and at the time of this decision, the parties were and are in a spousal relationship.
Therefore, the applicant meets clause 820.211(2)(a) and cl 820.221(1)(a) of the Act.
decision
The Tribunal remits the applications for Partner (Temporary) (Class UK) visas, with the direction that the first named applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl 820.211(2)(a) of Schedule 2 to the Regulations
·cl 820.221(1) of Schedule 2 to the Regulations
Cheryl Cartwright
MemberATTACHMENT - 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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