Raj (Migration)

[2021] AATA 1906

Raj (Migration) [2021] AATA 1906 (30 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tilak Raj

CASE NUMBER:  1902530

DIBP REFERENCE(S):  BCC2013/2052620

MEMBER:Steven Griffiths

DATE:30 April 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 30 April 2021 at 5:09pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – genuine and continuing partner relationship – relationship ceased – family violence claim – sponsor’s time in jail – claimed financial support to the sponsor’s family – no joint social activities – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 801.221; rr 1.09, 1.15

CASES

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 Immigration on 15 January 2019 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. Tilak Raj, applied for the visa on 10 December 2013 on the basis of his relationship with his sponsor, Ms. Prue Patterson. 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 of the Schedule 2 to the Regulations because the applicant was not the spouse, as defined in s.5F of the Act, of the sponsor.

4. The applicant was assisted by his registered migration agent, Mrs. Damanjot Kaur, of Time Migration Services Pty. Ltd.

5. The applicant appeared before the Tribunal, by Microsoft Teams as he had moved from South Australia to Victoria several months ago, on 29 April 2021 to give evidence, respond to questions and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Punjabi languages, with the migration agent also taking part by Microsoft Teams.   

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file, the Tribunal file including additional information provided by the applicants and the oral evidence from the hearing.

   ISSUE

8. The issue in the present case is whether the applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGOUND OF THE EVIDENCE

9. Mr. Raj was born in India in 1976. His parents, born in 1971, live in India, as do his 2 brothers and a sister, born 1973, 1980 & 1983. He arrived in Australia on 26/12/08 on a Student 572 Dependent Visa granted 3/11/08 and to cease 8/12/10.  He was granted a Graduate 485 Dependent Visa on 13/6/12 and to cease 13/12/12 and was on a Bridging Visa WA-010 from 11/12/13 to 21/10/14 when he was granted a Partner 820 visa.  He was previously married from October 2007 to April 2013, with no children.

10. Ms. Patterson was born in Australia in 1974. Her parents, born 1941 & 1942, are separated, and she has a sister, born 1973, and a son, born 2003, with all living in Australia.

    BACKGROUND OF THE EVIDENCE

11. Since the Department made a decision, the parties have provided further information to the Tribunal including:-

    Dr. Gurdial Sidhu, applicant GP since June 2014, report 10/2/20

    Statement by applicant, 17/2/17

    Form 1410, Statutory Declaration for Family Violence Claim, 14/2/20

    Letter from Lawyer of sponsor to sponsor on her Court ruling and position that no grounds exist for an appeal, 17/5/15

    Ms. Voula Antoniadis, Registered Psychologist, report on applicant, 25/2/20

    Applicant and Sponsor Divorce Order, 19/11/20

    Email from Migration Agent of 23/4/21 confirming applicant has moved to Victoria and new contact details

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

12. Clause 801.221(2)(b)(ii) requires that 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 Tribunal accepts the documented evidence of the sponsor being an Australian citizen by birth.  

    Whether the parties are in a spouse or de facto relationship

13. 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).

14. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

15. In forming an opinion whether they are in a spouse or de facto relationship consideration must be given 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 r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A copy of the applicant and sponsors marriage certificate is on the Department’s file. The parties presented as part of the visa application documented evidence they were married in Australia on 17/11/13. There is nothing to suggest that the marriage is not valid. 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).

17. The Tribunal notes the parties are now divorced, with the Tribunal accepting the documented and oral evidence of the applicant of the parties mutually decision to divorce, with a Divorce Order dated 19/11/20 provided.

    Claim of Family Violence

18. The Tribunal notes the documented evidence Form 1410 Statutory Declaration of Family Violence claim, dated 14 February 2020

19. The Tribunal notes a report by a Dr. Gurdial Sidhu, General Practitioner of the applicant since June 2014 dated 10 February 2020 with reference to his mental health and family violence.

20. The Tribunal notes a report by Ms. Voula Antoniadis, Registered Psychologist, on the applicant and family violence dated 25/2/20.

21. The Tribunal notes this documented evidence of a family violence claim was submitted to the Tribunal on 23 April 2021.

22. The Tribunal notes the oral evidence of the applicant, in response to a question, that he did not submit the Family Violence claim in February 2020 as he was intending to collect more evidence, with the migration agent advising that she received the information in December 2020.

23. The Tribunal notes that no information on the family violence claim by the sponsor is dated after February 2020.

24. The Tribunal confirmed to the applicant at the start of the hearing that the review application was based upon the Delegate decision of 15 January 2019 to refuse the Partner 801 Visa on the basis that a spousal relationship did not exist, and that the Tribunal or any other body would only give consideration to the family violence claim if the spousal relationship was deemed to have been proven.

    Are the other requirements for a spouse relationship met?

25. The Tribunal has considered the evidence relevant to the matters in r.1.15A. The Tribunal took into account the available documentary evidence contained on the Department’s file and the Tribunal’s file and evidence provided to the Tribunal.

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (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 expense

26. The Tribunal accepts the documented and oral evidence of the applicant that at the time of the visa application and cessation of the relationship no real estate or other major assets was jointly owned by the parties.

27. The Tribunal determines from the documented and oral evidence of the applicant that at the time of the visa application and cessation of the relationship the parties do not have any joint liabilities.

28. The Tribunal determines from the documented and oral evidence of the applicant that at the time of the visa application and cessation of the relationship none of the parties has a legal obligation to the other.

29. The Tribunal accepts the documented evidence of the applicant that he is an Uber driver.    

30. The Tribunal accepts the documented and oral evidence of the applicant that the sponsor was in jail from August 2014 to March 2017.  

31. The Tribunal accepts the documented and oral evidence of the applicant that a joint name bank account existed, while determining that at no time during the relationship was any income source for the sponsor deposited into this account, with the sponsor maintaining a separate account in her name only to which any deposits of her funds were made.

32. The Tribunal notes the references in the refusal decision of the delegate that the applicant has stated that he provided financial support to the sponsor while she was in jail, and also financially support the son and mother of the sponsor for this period.

33. The Tribunal accepts the oral evidence of the applicant that that he has no documented evidence to provide on financial support he has previously stated he provided to the mother of the sponsor, a person he lived with from May 2015 to a period in July 2019 when he left the home with the cessation of the relationship.

34. The Tribunal accepts the oral evidence of the applicant that he has no documented evidence to provide on financial support he has previously stated he supplied to the son of the sponsor while the sponsor has in jail.

35. The Tribunal notes the applicant provided no documented or oral evidence of he providing financial support to the sponsor during her time in jail from August 2014 and following her release in March 2017 until the cessation of the relationship in July 2019.

36. The Tribunal notes the applicant provided no documented or oral evidence of the sponsor providing him with any financial support following her release from jail in March 2017.

37. The Tribunal determines, at the time of applicant and cessation of the relationship, that the joint name bank account of the parties was operated only by the applicant, and that no evidence exists on the pooling of financial resources for major financial commitments and the sharing of day-today household expenses.

    Nature of the household aspects that must be considered include:-

    (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

38. The Tribunal accepts the documented, photographic and oral evidence of the applicant that the sponsor has a son, born in 2003, who lived with her and then with the mother of the sponsor when the sponsor was in jail.

39. The Tribunal observes the refusal decision of the delegate, at page 4, referred to claims by the applicant that he was responsible for the care and support of the sponsors child during her incarceration and the reference at page 5 of referring to the child as his son.

40. The Tribunal accepts the oral evidence of the applicant that the child of the sponsor “did not have much interest in me” and that for the near 3 years the sponsor was in jail the “mother of the sponsor did everything for the child” and determines, at the time of the application and cessation of the relationship, the applicant had no involvement in the care and support of the child of the sponsor.  

41. The Tribunal accepts the documented, photographic and oral evidence of the applicant that the parties lived together, with the son of the sponsor, from a few months prior to their wedding in 17 November 2013 and continued living together until the applicant was taken by police and jailed on 29 August 2014.

42. The Tribunal accepts the oral evidence of the applicant that from 20 March 2017 when the sponsor was released from jail, the parties lived apart until late in 2017 as the sponsor was required to live in a different area of Adelaide as part of her release conditions.

43. The Tribunal accepts the oral evidence of the applicant that the relationship of the sponsor and applicant was good for 6 months after their wedding, and from that time on the sponsor was involved with others and had developing drug issues, with the 4 months before jail and period following her release from jail being periods in which the parties argued extensively and the sponsor or the applicant spent periods staying with others and in some of the periods in which they were in the same house the relationship was strained.

44. The Tribunal notes that the applicant was unable to provide oral evidence of when the sponsor returned to living in the home of her mother, where the applicant had been living from May 2015, or the length of time that the parties lived in this home together, only that he eventually left the home permanently on 15 July 2019.

45. The Tribunal notes the oral evidence of the applicant, when asked about sharing household responsibilities, that “sometimes we cook, sometimes we order outside”, and with the previously noted periods of the parties living apart, for short and long periods, and no documented, photographic or oral evidence the Tribunal determines that for an extensive period, estimated to be over 5 years, prior to the cessation of the relationship the parties did not share the responsibility for housework

    Social aspects of the relationship that must be considered include:-

    (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

46. The Tribunal accepts the oral evidence of the applicant that while their first six months of being married, so to approximately May 2014, the relationship was a good one, he “married the wrong person”.

47. The Tribunal observed to the applicant that while the visa applicant included Form 888 Statements from the mother of the sponsor and friend of the sponsor, the applicant provided no documented or oral evidence from any party who was a relative of friends of his about the relationship and marriage, with the applicant stating that he did not realise that he should have sought to provide these types of evidence.

48. The Tribunal observes that the refusal decision of the delegate referred to the Department of Human Services record for the applicant, of October 2018, detailed that she had always had a relationship status of single, and thus had never advised Centrelink of her marriage.

49. The Tribunal notes the oral evidence of the applicant that the sponsor “had a boyfriend who started coming over”, and that the applicant was concerned that he did not want to go through a second divorce so he wanted the marriage to work but he and the sponsor argued often from when the sponsor developed drug issues in mid-2014, resulting in multiple periods when he resided with friends for periods and resulting in the applicant leaving the home of the mother of the sponsor in July 2019.

50. The Tribunal determines, from the documented and oral evidence, that the parties, from the release of the sponsor from jail in March 2017, did not represent themselves to other people as being married to each other.

51. The Tribunal determines, with no documented or oral evidence provided by other parties after August 2017, that no opinions have been provided that reflect the position held on the relationship during the period following the sponsor returning to live in the family home, that for the 2 years prior to the cessation of the relationship it cannot support a position that friends and acquaintances were supportive of the relationship and marriage.

52. The Tribunal notes the applicant, from September 2017, has provided one photograph of the sponsor, her mother and the applicant, in December 2018, and has not provided any statements or declarations from his friends, and provided no oral evidence of the parties undertaking social activities, other than to say “I did not think it was important”.

53. The Tribunal determines, from the time of the sponsor being incarcerated in jail in August 2014 and until the cessation of the relationship in July 2019, the applicant has provided no evidence of the he and the sponsor jointly planning and undertaking social activities.

    Nature of the commitment to each other that must be considered include:-

    (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.

54. The Tribunal accepts the documented and oral evidence from the applicant that the parties initially met in November 2012, with the relationship developing to the parties committing to each other in September 2013 and marrying on 17 November 2013.

55. The Tribunal accepts the oral evidence of the applicant that with the applicant being divorced from his first wife in April 2013, the sponsor said to him that to prevent him having visa problems that they marry.

56. The Tribunal accepts the oral evidence of the applicant that the spousal relationship of the parties was a good one for six months, following which they argued about the drug issues of the sponsor, and with her spending nearly 3 years in jail, the relationship never recovered, even though he wanted it to as he did not want to be divorced a second time.

57. The Tribunal determines, from the documented and oral evidence of the applicant, that the relationship of the parties was not a productive, spousal relationship from mid-2014.

58. The Tribunal accepts the documented and oral evidence of the parties that they lived together from approximately September 2013 until August 2014, from which time the sponsor was in jail until March 2017, and from that time on the parties spent extensive periods in which they were not in the same house and it is not possible for the Tribunal to determine that from March 2017 until the applicant left the home of the mother of the sponsor in July 2019 that the parties lived together in a spousal relationship at any time.

59. The Tribunal accepts the oral evidence of the applicant that from May 2014 the drug issues of the sponsor caused continual issues and distress in the relationship of the parties, and while the applicant asked the sponsor to support her mother and son during the near 3 years the sponsor was in jail, the Tribunal determines that from May 2014 to July 2019 no documented or oral evidence was presented of companionship or moral support being provided by the parties to each other.

1. The Tribunal accepts the documented and oral evidence of the applicant and determines, from May 2014 to the eventual cessation of the relationship in July 2019, the parties did not have an ongoing commitment to each other, the relationship and marriage as being for the long-term.

   Any other circumstances of the relationship

2. The Tribunal recognises that the drug issues of the sponsor from May 2014 presented serious issues to the relationship.

3. The Tribunal recognises that the sponsor spending nearly 3 years in jail presented serious issues to the relationship.

4. The Tribunal accepts the oral evidence of the applicant on the sponsor having a boyfriend, for an undisclosed time, and determines prior to the cessation of the relationship in July 2019 the parties did not have an ongoing commitment to each other to the exclusion of all others.  

5. The Tribunal observes that the refusal decision of the delegate, at page 3, refers to the applicant being informed by letter of 12 November 2018 that the Department “had received information that you relationship with the sponsor is contrived for migration purposes only”, while going on to note on page 4 that “no response was ever received in relation to any concerns raised”.

6. The Tribunal noted to the applicant, early in the hearing, that at no time since the lodgement of the review application on 4 February 2019, did the applicant provide any form of submission dealing with any of the issues raised by the delegate in the refusal decision.

7. The Tribunal asked the applicant at the end of the hearing if he had any documented evidence that he wished to lodge following the hearing, and if so what it was and when it could be presented, with the applicant stating that he had no documented evidence to submit. 

8. Given these findings the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant does not meet cl.801.221(2)(c).

9. Furthermore, while the applicant has claimed, 2 years and 1 month after the refusal decision, family violence was the reason for the cessation of the relationship, there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221(2A), (3), (4), (5) or (6).

10. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

11. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Steven Griffiths
    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).