Sathandla Halli Vijayakumar (Migration)

[2022] AATA 91

Sathandla Halli Vijayakumar (Migration) [2022] AATA 91 (5 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajath Sathandla Halli Vijayakumar

REPRESENTATIVE:  Ms Rosemary Acutt (MARN: 1461394)

CASE NUMBER:  1823440

HOME AFFAIRS REFERENCE(S):          BCC2017/865023

MEMBER:Meredith Jackson

DATE:5 January 2022

PLACE OF DECISION:  Brisbane

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 of Schedule 2 to the Regulations

Statement made on 05 January 2022 at 6:05pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – insufficient information concerning the sponsor – sponsorship declaration – National Police Check – extensive shared financial and business arrangements – shared household duties reflecting business commitments – social and professional recognition of the relationship – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

CASES

Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

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 5 March 2017 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. 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 visa applicant did not satisfy cl 820.211 because he had not provided sufficient evidence that he was the spouse or de facto partner of the sponsor; and there was insufficient information before the delegate concerning the sponsor.

4.    The applicant was represented in relation to the review by her representative Ms Rosemary Acutt.

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

CASE SUMMARY

6.    The visa applicant is Mr Rajath Sathandla Halli Vijaykumar, a citizen of India born in 1985. He sought the visa on the basis of his marriage to Dr Shubha Suvarana, born in 1982, an Australian citizen by grant. The parties operate six dental clinics in regional Queensland and a denture clinic in Maryborough. The applicant, an engineer by training, runs the business and is a director of the company, while the sponsor is a director, trustee and the principal dentist in the Maryborough practice. The sponsor is divorced, the applicant declares no previous marriages. There are no children of the relationship.

7.    The decision to refuse the visa in July 2018 followed three invitations from the Department requesting more evidence pertaining to the sponsor in a Form 40SP. The final request was directed to the applicant and the standard 28 day response period was provided for. The parties claim that they initially failed to fully understand this request, having prepared the application themselves, however, on 11 July 2018, the parties notified the Department they were preparing the form 40SP and the other requested information and asked for further time to do so. This extension was not granted, and the decision was made 14 days later, on 25 July 2018, at which time the parties were together at a dental conference in Japan.

8.     Following the refusal the applicant and sponsor submitted evidentiary material to the Department. With the aid of their representative, they submitted considerably more information to the Tribunal on review. The parties claim they are in a genuine spousal relationship; and further, that they would have provided the required sponsor information if they had been granted the extra time they requested.

ISSUES AND LAW

9.    There is a two stage process for onshore Partner visas. An applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.

1. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events that took place after 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.[1] The Tribunal observes this case to be a matter where the applicant submitted limited documentary evidence in support of the visa application to the Department and then furnished the Tribunal with extensive evidence that was unavailable to the primary decision maker.

   [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

2. At the time of this decision the applicant has not provided a Form 40SP specifying his sponsor for the purposes of the visa application.

3. The issues in the present case are whether at the time of the visa application and the time of this decision, the applicant was sponsored as required; and whether he is the spouse or de facto partner of the sponsor.

Whether the parties are in a spouse or de facto relationship

1. 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 is an Australian citizen.

2. ‘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.

CONSIDERATION OF CLAIMS AND EVIDENCE

Is the applicant sponsored as required?

1. Sponsorship approval is a time of application criterion, requiring that the sponsor provide certain information. Relevantly to the present matter, this includes whether the sponsor has turned 18, is an Australian citizen, and is not prohibited from being a sponsoring partner: cl 820.211(2)(c). In this connection, a sponsor may be required to provide an Australian National Police Check from the Australian Federal Police (AFP).

2. On 13 December 2017 and 11 January 2018, the Department requested such information from the sponsor asking also for the relevant sponsorship declaration, a Form 40SP, to be provided along with other information including a police check. On 15 June 2018, the applicant was requested to provide information including a completed Form 40SP and given 28 days to do so. A request for an extension of time to provide further evidence include the 40SP, however in the absence of reasons being provided for the request, an extension was not granted. The visa was refused 14 days later on 25 July 2018.

3. The parties do not dispute that they did not provide the Form 40SP as required.

4. The question for the Tribunal in this regard is whether whether sponsorship undertakings provided with the application are sufficient to satisfy the requirement at the time of application and the time of this decision. To this end, the Tribunal has carefully considered information provided at the time of the visa application, and considered the information provided after the visa was refused and in support of the review. The Tribunal notes that the Departmental file at Folio 48 contains a copy of a National Police Check for the sponsor (AFP Ref xxxxx17PC). It is dated 5 February 2018 and was provided to the Department along with an AFP receipt, and appears to have been provided concurrent with a Bridging visa application. It shows no disclosable court outcomes for the sponsor. There is clearly some possibility that the police check was provided in the context of a different application (a Bridging visa) however the Tribunal is mindful the applicant may have considered she had complied with the request. After carefully considering this, the Tribunal, on balance, is satisfied the sponsor provided a National Police Check to the Department prior to the decision being made and after the second request for her to do so was sent. The Tribunal accepts the applicants did not provide the Form 40SP, as requested to do several times, however the Tribunal takes into account the parties’ evidence that they were preparing to provide it.

5. Regarding the sponsor’s willingness to provide support to the applicant, the Tribunal is guided by the aforementioned authorities in Ally v MIAC [2008]; Jayasinghe v MIMA [2006] and Bretag v IRT [1991] and has taken into consideration later events when assessing whether the sponsor provided the necessary sponsorship undertakings at the time of the visa application.

6. Later in these reasons, the Tribunal will provide its detailed assessment as to the nature of the commitment the parties have to one another, as evident in the development, formalisation and conduct of their personal partnership, and the extensive shared financial arrangements they have put in place. The Tribunal is satisfied in the broad, however, that their circumstances provide a reasonable basis on which to form a view that the applicant was sponsored as required at the time of the visa application and remains so at the time of this decision. There is no evidence before the Tribunal that the applicant fails to meet the sponsorship requirement in the Regulations because of any other relevant consideration. Therefore, the Tribunal is satisfied that the sponsorship should be approved pursuant to the time of the visa application and continue to be approved at the time of this decision, and finds accordingly.

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant has provided a Queensland Marriage Certificate certifying a marriage between the parties on 10 February 2017 in Brisbane. 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?

Submissions to the Tribunal

1. On 19 November 2021 the Tribunal received submissions from the applicant and sponsor in support of the review application. These submissions address the requirements of the specific matters in reg. 1.15A(3). The Tribunal has also considered information on Department and Tribunal files and systems and finds as follows.

Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

1. The applicant provided a number of documents on review in support of the financial aspects of the relationship. This includes Australian Business Number registration details and Australian Company Number details for Vedas Dental Pty Ltd, with a registration date of 20 November 2015 and naming Dr Suvarna and Mr Vijaykumar as Directors of the company. Extracts from Trust Deeds for Vedas Dental show Dr Suvarna as Trustee. A vehicle purchase receipt and American Express statements as evidence of the parties being joint operators of the Trust’s credit card facility, are provided. Personal income tax returns for the parties for 2019 and 2020 nominate the parties as respective spouses and declare their individual income from the business. Rental agreements for commercial premises are provided and a large number of documents showing the applicant and sponsor at shared residential premises are provided. Departmental files indicate that following the refusal in July 2018, the sponsor provided a written claim that she and her husband worked together in the business and as a professional and a member of a reputable family, she could not under any circumstances engage in fraud or illegal claims and provided a series of links concerning her standing as a dentist, and the extent of the businesses operations, day to day outgoings and employment of staff. She declares that their investments comprise four houses and four commercial buildings, the majority held in joint ownership under the trust. A Statutory Declaration (Form 888) was provided by Jayantilal Dullabh, the sponsor’s accountant and tax agent who declares the business was set up with the parties own funds, and that the applicant joined the sponsor’s dental business in 2014. Having carefully considered and weighed the above, and taken into account the documents provided on application, after the decision and on review, the Tribunal accepts that the parties have extensive joint ownership of assets; have joint financial liabilities through their corporate structures and private arrangements; pool their financial resources and have legal obligations to each other arising from their joint involvement in the corporate entity of which they are directors, and from their marriage, and that they share personal and business accommodation and day-to-day household expenses.

Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

1. There are no children of the relationship and the sponsor declares no children from her previous marriage.  The applicant provided a range of household documents showing the parties have resided as tenants in the same rental properties since 2015; and have provided a Contract Tender for a residential property in joint names with Metricon, with a deposit paid on 17 June 2017. (The Tribunal notes the explanation provided by the sponsor that the contract reflects Mr Vijakumar as Rajath Gowda, a name used by some). The applicant and sponsor claim in separate written submissions that they share household duties as their business commitments and travel schedules dictate, with the applicant doing most of the cooking and shopping for food. The sponsor claims she is an avid gardener and has an extensive garden which the applicant assists in structuring and maintaining. The Tribunal having considered all the documentary evidence in support of the review is satisfied that the nature of the household is that of a professionally committed couple with no other residents besides their pet dogs. Their living arrangements and sharing of housework appear to be within normal community standards and commensurate with their circumstances as busy business owners.

Social aspects of the relationship – including whether the parties represent 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 the persons plan and undertake joint social activities.

1. The applicant provided to the Tribunal three Form 888 declarations and three letters from professional acquaintances and friends. A Form 888 declaration from Jami-Lee Sorbello (lawyer) states that she considers their relationship to be genuine and continuing and to feature affection and respect. A Form 888 declaration from Jayantilal Dullabh (accountant) declares their relationship to be very genuine; a  Form 888 from Peter Ponti (lawyer) states the relationship to be genuine and continue and that the parties have represented themselves “always” as husband and wife. A letter from Wendy Thomson (dog trainer) states that she has been training their two pet dogs since April 2020 and notes the owners are “caring and very good caretakers of them”. A letter from Supreeth Nag (review applicant’s cousin) declares that he attended their traditional wedding celebration in India and has watched them grow in business and as a couple. A letter from Bhavana Ramakrishna (family friend and Masters student at the University of Queensland) states he has spent time in their new home and that he considers the parties have been in a happy marriage from when, or before, he met them in 2017. He considers the relationship genuine and continuing.  The parties provided photographs with each other in a wide range of locations including travelling to dental training seminars and with friends and colleagues in a wide range of settings. Some 47 photographs of their traditional wedding in Bangalore are also provided. The Tribunal having considered all the evidence above and the further documents provided, is satisfied that the parties represent themselves to other people as being married to each other; enjoy the opinion of friends and acquaintances about the nature of the relationship; and plan and undertake joint social and professional activities together.

Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

1. The parties provided extensive statements regarding the inception and development of their relationship since they travelled together in the United States in April 2014 and committed to a relationship in November 2014. The statements describe, in the broad, that when they met, the sponsor was married to her former husband, however left the matrimonial home soon after she returned from the USA. The parties commenced cohabiting in 2014 and the sponsor’s divorce was finalised on 18 October 2016. The applicant was working in the dental practice from 2014 but had also enrolled to study English language and a Master of Engineering Science and a Master of Business Administration. Both degrees were ultimately cancelled due to conflicting responsibilities and the need for the applicant to spend time every week in Toowoomba. The Tribunal considers the parties’ documentary evidence supports that at no time since they began cohabiting were they living separately and apart on a permanent basis. In February 2017 they married, expanded the business to several dental clinics through south east Queensland, brought the applicant full time into the business and acquired two pet dogs.

1. The parties each describe their relationship as successful and loving and provide detailed descriptions of their respect and support for one another. They provided evidence that in June 2020 they together entered into fertility treatment together in Buderim.

2. The Tribunal has considered the evidence provided by the applicant and his sponsor concerning the nature of the relationship and is satisfied that the parties committed to it in 2014 and have lived together since; have provided a strong degree of companionship and emotional support for each other through both personal challenges and those of their business; and that they each see the relationship as long-term. This is a finding supported by the parties having entered into IVF treatment in order to increase their chances of forming a family; and the effort, made to convince the Tribunal that their relationship is genuine and that they are happy, contributing members of society together.

Overall conclusions

1. Having carefully considered all the evidence, and for the reasons above, the Tribunal is satisfied that at the time of application and at the time of this decision, the applicant and sponsor have a mutual commitment to a shared life to the exclusion of all others, and that the relationship between the two is genuine and continuing.

2. The Tribunal is satisfied the parties are not related by family. The Tribunal is therefore satisfied the requirements of s.5F(2)(a)-(d) of the Act are met at the time of the visa application.

3. The Tribunal is further satisfied that at the time of this decision, the applicant and sponsor are validly married and continue to have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship between them remains genuine and continuing. The Tribunal is also satisfied that they have lived together and not separately and apart on a permanent basis since their marriage. The Tribunal is therefore satisfied the requirements of s.5F(2) of the Act are met at the time of this decision.

4. The Tribunal is satisfied both the applicant and the sponsor were at least 18 years of age at the time of the visa application. The Tribunal is further satisfied that the sponsor is not prohibited from being a sponsoring partner and that the applicant is sponsored by an Australian citizen as required.

5. The Tribunal finds the applicant meets cl 820.211(2)(a) and cl 820.221.

1. 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

1. 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 of Schedule 2 to the Regulations

Meredith Jackson
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).

1. 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.

2. 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).