Shah (Migration)

[2022] AATA 4494

Shah (Migration) [2022] AATA 4494 (21 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hiten Navinchandra Shah

REPRESENTATIVE:  Mr Uday Kumar Mishra (MARN: 0215810)

CASE NUMBER:  1903374

HOME AFFAIRS REFERENCE(S):          BCC2016/1608509

MEMBER:Cheryl Cartwright

DATE:21 November 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

·cls 820.221(2)(b) and 820.221(2)(c) of Schedule 2 to the Regulations

·reg 2.03A

Statement made on 21 November 2022 at 11:39am

CATCHWORDS
MIGRATION –Partner (Temporary) (Class UK) visa – Subclass 820 – sponsor died – applicants formally registered their de facto relationship – Tribunal is satisfied that the parties were in a committed de facto relationship – applicant continued to live with the sponsor and take care of him until his death –– applicant would have continued to be the spouse of the sponsoring partner – requirements of s 5CB(2) are met at the time of application and at the time of this decision – decision under review remitted

LEGISLATION
Migration Act 1958, ss, 5F, 65
Migration Regulations 1994, rr 1.09,1.15, 2.03A, Schedule 2, cls 820.211, 820.221

CASES

He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139

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 29 April 2016 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(2)(a) because insufficient evidence had been provided 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.

4. On 14 February 2019 the applicant applied to the Tribunal for review of the refusal decision. Upon reviewing the submissions and further evidence, the Tribunal considered that, based on the material before the Tribunal, a hearing was not required and that the review should be decided in the review applicant’s favour pursuant to s 360(2)(a).

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

   Consideration of claims and evidence

6. The issue in the present case is whether, at the time of application on 29 April 2016, the applicant and the sponsor were spouses for the purposes of the Act.

7. 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.

8. 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.

   Background

9. The parties met in August 2014 when the applicant moved into an apartment in the same block as the sponsor’s apartment. They spoke often and a month after meeting the applicant moved into the sponsor’s apartment.

10. The sponsor was unwell, with back pain and hearing loss and the applicant was studying health care and began to care for the sponsor.

11. The parties registered their relationship on 15 April 2016.

12. The sponsor’s health deteriorated over the years and the applicant cared for him during this time. The sponsor died on 7 June 2022. A copy of the death certificate is on the Tribunal’s file. The death certificate describes the cause of death as “unascertained in a man with covid19”.

    Whether the parties are in a spouse or de facto relationship

13. Clause 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 have been the de facto partner of the sponsor who was an Australian citizen. A copy of the sponsor’s birth certificate is on the Department’s file.

    Are the parties in a de facto relationship?

14. 'De facto partner' is defined in s 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 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 reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    The financial aspects of the relationship

16. 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.

17. There is no evidence before the Tribunal that the parties jointly owned real estate or other major assets or had any joint liabilities.

18. On the matter of legal obligations, the applicant provided evidence that he was the carer of the sponsor and was authorised to receive official correspondence on behalf of the sponsor.

19. On the matter of sharing of household expenses, the parties, before the sponsor had died, had provided the Department and the Tribunal with numerous copies of bank statements of joint accounts demonstrating income deposits from wages and from Centrelink, as well as expenditures for household items.

20. In a statement by the applicant dated 6 January 2019 provided to the Department, the applicant states that he pays for gas, electricity, mobile phone, internet and groceries and the sponsor pays for the rent for their apartment. He states that they share the costs of medicines for the sponsor.

21. The Tribunal gives some weight to the evidence of the sharing of household expenses and is satisfied that the parties jointly managed their finances.

    Nature of the household

22. 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.

23. There is no evidence before the Tribunal that the applicant and the sponsor have or had or cared for any children together.

24. As mentioned above, the parties began living together in September 2014 and formally registered their relationship with the Victorian Government’s Registry of Births Deaths and Marriages on 15 April 2016. A copy of the registration certificate is on the Department’s file.

25. A number of statutory declarations submitted to the Tribunal, as mentioned below, state that the applicant continued to live with the sponsor and take care of him until his death in June 2022.

26. In a statutory declaration by Mr Kunal Bharatkumar Patel dated 22 August 2022, Mr Patel states that the applicant would purchase groceries for the parties as the sponsor was too unwell to leave the home.

27. The parties, before the sponsor had died, provided the Department and the Tribunal with numerous copies of utilities invoices addressed to both parties.

28. In a statement by the sponsor dated 2 January 2019, provided to the Department, the sponsor describes the parties as both sleeping on the floor on a futon which is good for back support, and he had converted the bedroom of the apartment into a prayer room for the applicant.

29. A medical certificate dated 27 December 2018, signed by Dr Raviraj Kabrawala of Q1 Medical in Hoppers Crossing, stated that both the applicant and the sponsor were patients of his. Dr Kabrawala stated that the sponsor suffered from sore legs, severe sciatica, psoriasis, idiopathic thrombocytopenic purpura and severe hearing loss and that the applicant’s care for the sponsor had improved his wellbeing.

30. A letter from Centrelink dated 21 August 2019 stated that the applicant had been registered as the communication nominee for the sponsor.

31. In the statement mentioned above dated 6 January 2019 by the applicant and provided to the Department, the applicant states that the sponsor helps with the housework when he is not in pain.

32. In the statement, the applicant states that they cook their own style of food, but the applicant does most of the cooking, including learning to cook the meals the sponsor likes and keeping cakes in stock in the cupboard because this is what the sponsor likes to eat.

33. The Tribunal gives some weight to the evidence provided to the Department and to the Tribunal and is satisfied that the information provided supports the nature of the household as being that of a genuine and continuing relationship between the parties.

    The social aspects of the relationship  

34. Whether the persons represent themselves to other people as being in a de facto relationship, 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.

35. The Tribunal was provided with a number of photographs of the parties undertaking social activities with friends, as well as entertaining friends at their home.

36. In a statutory declaration by Mr Grant Bradley dated 18 August 2022, Mr Bradley states that he met the applicant at the Australasian Lawrence Aged Care College where he was a teacher and the applicant was a student. They later worked as colleagues at Health Careers Australia. Mr Bradley states that he also became friendly with the sponsor and attended birthdays and other celebrations at the parties’ home.

37. In a statutory declaration by Mr Manmath Madhusudhan Pandya dated 22 August 2022, Mr Pandya states that he met the applicant at a temple they both attended and also met the sponsor and the sponsor’s family. He stated that he had invited the parties to visit his home in Wantirna for a housewarming party but the sponsor had been too unwell to accept the invitation, although the applicant was able to attend.

38. In the statutory declaration by Mr Patel dated 22 August 2022 mentioned above, Mr Patel states that he often visited the parties at their home for special meals.

39. In a statutory declaration by Mr William Alexander Weatheritt dated 15 October 2022, Mr Weatheritt stated that he met the parties more than seven years ago, pre-COVID, and he had visited their home often and shared many “home cooked meals, television and long conversations” with the parties.

40. In a statutory declaration by Jatinkumar Kiritkumar Purani dated 3 January 2019 provided to the Department, Mr Purani states that he sometimes visits the parties at their home and is in regular telephone contact with them.

41. In a statutory declaration by Colin Crow dated 11 January 2019 provided to the Department, Mr Crow states that he is friends with the parties and often dines with them. He stated that the applicant would do the shopping and most of the cooking and cleaning in the home because of the sponsor’s ill health.

42. In a statutory declaration by William Alexander Weatheritt dated 14 January 2019 provided to the Department, Mr Weatheritt states that he often visits the parties at their home on his way home from work.

43. The Tribunal gives great weight to the statutory declarations mentioned above and some weight to the photographs submitted and is satisfied that the parties present themselves to other people as being in a de facto relationship.

    The nature of the persons’ commitment to each other

44. 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.

45. In a statement by the sponsor dated 2 January 2019, mentioned above and provided to the Department, he states that he supported the applicant emotionally when the applicant told his family in India that he was gay and states that the family would like to visit Australia to see them both.

46. In the statutory declaration by Mr Grant Bradley dated 18 August 2022, mentioned above, Mr Bradley states that the parties had a loving relationship, and the applicant took great care of the sponsor up until his death.

47. In the statutory declaration by Mr Manmath Pandya dated 22 August 2022, mentioned above, Mr Pandya states that the parties had a “very close and loving relationship” and that the applicant had taken care of the sponsor’s health. He states that the applicant grieved when the sponsor died and was committed to organising the funeral.

48. In the statutory declaration by Mr Patel dated 22 August 2022, mentioned above, Mr Patel said he would sometimes drive the applicant to work and the applicant would give the sponsor “kisses and hugs” before leaving for the day. Mr Patel stated, “I believe their relationship is based on real love and affection”.

49. In the statutory declaration by Mr Weatheritt dated 15 October 2022, mentioned above, Mr Weatheritt stated that he had observed the applicant’s devotion to the sponsor. He states that the applicant “has been completely devastated” by sponsor’s death.

50. In the statutory declaration by Mr Weatheritt dated 14 January 2019, mentioned above and provided to the Department, Mr Weatheritt states that the applicant is very supportive of the sponsor in dealing with his health issues. He states that the parties share “a very stable and loving relationship”.

51. In the statutory declaration by Mr Purani dated 1 January 2019, mentioned above, Mr Purani stated that the applicant would often tell him about the sponsor’s ill health and would take great care of the sponsor, even getting up during the night to make snacks for him.

52. In a statutory declaration by Grant Bradley dated 6 January 2019 provided to the Department, Mr Bradley states that the applicant is a caring person who “is genuinely committed to” the sponsor.

53. In a statutory declaration by Kunal Bharatkumar Patel dated 4 January 2019 provided to the Department, Mr Patel states that the parties take great care of each other. Mr Patel stated that the parties had adopted a pet bird and had consoled each other when the bird died.

54. In the statement mentioned above dated 6 January 2019 by the applicant and provided to the Department, the applicant states that the parties planned to be married.

55. The Tribunal places great weight on all the statutory declarations provided by friends of the parties and on the statements by the parties that were provided to the Department. The Tribunal is satisfied that the parties were in a committed de facto relationship.

    Would the applicant have continued to be the sponsor’s partner if the sponsor had not died?

56. Clause 820.221(2)(b) requires that the applicant would have continued to be the spouse of the sponsoring partner and would continue to meet certain other time of application criteria, if the sponsoring partner had not died. In these cases the applicant must have developed close business, cultural or personal ties in Australia: cl 820.221(2)(c).

57. In the statutory declaration dated 18 August 2022 by Bradley Grant, mentioned above, Mr Grant states that he helped the applicant to get a job with Health Careers Australia and that the applicant receives praise from management for his good work. Mr Grant stated the applicant is of good character and “is a genuine, kind, hardworking person”. Mr Grant also stated that the applicant is involved in the local community and had also assisted Mr Grant when he was unwell.

58. In the statutory declaration dated 22 August 2022 by Manmath Pandya, mentioned above, Mr Pandya stated that he has become a close friend of the applicant.

59. In the statutory declaration dated 22 August 2022 by Kunal Patel, mentioned above, Mr Patel states that he is a close friend of the applicant and is helping him to deal with his grief after the death of the sponsor.

60. In the statutory declaration dated 15 October 2022 by William Weatheritt, mentioned above, Mr Weatheritt stated that he is a close friend of the applicant and is supporting the applicant as he deals with grief after the death of the sponsor. Mr Weatheritt stated that the applicant is a good friend and “an asset to myself and those around him”.

61. Having regard to all the information before it, and mentioned above, the Tribunal is satisfied that, had the sponsor not died in June 2022, the parties would have remained in a committed de facto relationship.

62. Having regard to the statements in the statutory declarations made by friends of the applicant the Tribunal is satisfied that the applicant has developed close personal ties in Australia.

63. The Tribunal is satisfied that the applicant meets cl 820.221(2)(b) and (c).

    Are the additional criteria for a de facto relationship met?

64. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

65. The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa. As mentioned above, the parties met in 2014 and formally registered their de facto relationship on 15 April 2016.

66. The applicant was born in India on 5 May 1970. The sponsor was born in Australia on 1 January 1959 and died on 7 June 2022. The parties were not related by family.

67. Given all the information provided to it, the Tribunal is satisfied that the applicant meets reg 2.03A.

    CONCLUSION

1. As stated above, the Tribunal is satisfied that, at the time of application were in a valid de facto relationship as required by s 5CB of the Act.

2. 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, at the time of application on 29 April 2016, the applicant and the sponsor:

   ·had a mutual commitment to a shared life as de facto partners to the exclusion of all others, as required by s 5CB(2)(a) of the Act;

   ·had a genuine and continuing relationship, as required by s 5CB(2)(b) of the Act;

   ·lived together as required by s 5CB(2)(c) of the Act; and

   ·were not related by family, as required by s 5CB(2)(d) of the Act.

3. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of application. The Tribunal is satisfied that the parties were in a spousal relationship.

4. At the time of this decision, given the findings above, the Tribunal is satisfied that the applicant would have continued to be the spouse of the sponsoring partner and has developed close personal ties in Australia, therefore meeting cls 820.221(2)(b) and 820.221(2)(c).

5. On the basis of the above the Tribunal is satisfied that the requirements of s 5CB(2) are met at the time of application and at the time of this decision.

   decision

6. 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(2)(b) and cl 820.221(2)(c) of Schedule 2 to the Regulations

   ·reg 2.03A

   Cheryl Cartwright
   Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   1.09A     De facto partner and de facto relationship

   (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

   Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
   Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
   Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).