Shyam Pal (Migration)

[2021] AATA 1498

Shyam Pal (Migration) [2021] AATA 1498 (11 May 2021)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Shyam Pal Shyam Pal

CASE NUMBER:  1813184

HOME AFFAIRS REFERENCE(S):          BCC2016/3108735

MEMBER:  Joseph Francis

DATE:  11 May 2021

PLACE OF DECISION:  Perth

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

Statement made on 11 May 2021 at 3:45pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine de facto relationship – limited evidence of financial, household and social aspects of relationship, and nature of commitment – no appearance by sponsor at hearing, with no explanation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65
Migration Regulations 1994 (Cth), r 1.09A(3), Schedule 2, cls 820.211(2)(a), 820.221

CASE

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

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

1. The applicant applied for the visa on 19 September 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.

1. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because they were not satisfied the parties were in a genuine de facto relationship as defined by section 5CB of the Migration Act.

1. The Tribunal scheduled three different hearings in order to accommodate the appearance in person of the sponsor to give evidence to the Tribunal.

1. The first hearing was scheduled for 19 January 2021. However, when the Tribunal was informed the sponsor would not be attending in person as requested by the Tribunal, this hearing was adjourned.

1. A second hearing was held on 23 February 2021. However, the sponsor informed the Tribunal by email received on 23 February 2021 (prior to the scheduled hearing time) that she would be unable to attend due to her work roster. The Tribunal called the sponsor to explain that she would be expected to attend in person to give evidence, and that the hearing would be adjourned and rescheduled to a date that she could attend on.

1. A third hearing was held on 12 April 2021. The visa applicant attended by video from India. The sponsor did not attend this hearing.

1. The visa applicant was unable to explain the whereabouts or reason for non-attendance of the sponsor at the hearing, but stated that the sponsor and himself had spoken on the phone the previous day and that she would be catching a train from Kalgoorlie to Perth in order to attend the hearing.

1. At the time of this decision, no explanation has been provided to the Tribunal as to the sponsors’ non-attendance.

1. The Tribunal proceeded with the hearing on 12 April 2021 and heard evidence from the visa applicant via video and telephone.

1. The visa applicant also offered additional witnesses who provided evidence by telephone as to the nature of the relationship:

·     Mr Brijesh Patel

·     Mr Amarpreet Singh

1. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

1. The applicant was not represented in relation to the review by his registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the parties are in a genuine de facto relationship as required by cl.820.211(2)(a).

1. In addition to the evidence provided to the delegate, the Tribunal was in receipt of further material submitted by the review applicant.

1. Non-certified copies of the following documents were submitted:

·     Westpac bank statements held in individual names;

·     Photographs of the parties in various locations dated 2014 to 2018;

·     Rental Tenancy Agreement in the name of the visa applicant and sponsor commencing 1 May 2018;

·     Rental Tenancy Agreement in the name of visa applicant, sponsor, and a third party, commencing 13 December 2015;

·     Rental Tenancy Agreement in the name of the visa applicant, sponsor and a third party, commencing 9 January 2017;

·     Letter from Crawford Realty; South Hedland, confirming the visa applicant and sponsor as tenants of a property , dated 10 June 2016;

·     Application to rent residential premises dated 1 October 2019;

·     Flight booking receipt dated 16 January 2016;

·     Flight booking receipt dated 14 January 2015;

·     Flight booking confirmation for 28 October 2015;

·     Declaration by Mr Amarpreet Singh of Maddington, Western Australia, signed and undated, received on 4 November 2020;

·     Westpac insurance policy certificate of currency dated 3 September 2018;

·     Statutory Declaration of the sponsor, Ms C Chaudhary, signed and dated 29 October 2020, outlining the history of the relationship;

·     Declaration by Brijesh Patel of Tweed Heads, New South Wales, signed and undated;

·     2017 Australian tax return for visa applicant;

·     Commonwealth Bank statements from 1 July 2020 to 31 December 2020 for visa applicant indicating transfers of money from sponsor to visa applicant,

·     ANZ bank transaction notifications from February 2021 and March 2021 indicating transfers from visa applicant to sponsor, and;

·     A photograph of jewellery; undated.

Whether the parties are in a spouse or de facto relationship

1. 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 be the de facto partner of the sponsor who is an Australian citizen.

Are the parties in a de facto relationship?

1. '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).

1. 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

1. The Tribunal considered each of the matters outlined in 1.09A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.09A(2), with the following findings:

Financial aspects of the relationship

1. The Tribunal considered the 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 Tribunal received limited evidence in support of and sharing of household expenses for the period the parties claim to have resided together. The Tribunal is concerned only one Australian taxation return was provided by the visa applicant – for the year 2017, in which he declared the sponsor to be a de facto partner.

1. The Tribunal is concerned that the evidence of pooling of financial resources provided to the Tribunal includes a limited number of transfers of funds between the parties that took place in the lead up to the Tribunals’ scheduled hearing. The Tribunal is not satisfied that the transfers back and forth between the parties, without explanation, was not undertaken for the purpose of creating evidence to support financial aspects of the relationship.

1. Without the attendance of the sponsor at a hearing the Tribunal was limited in its ability to test the claims made by the visa applicant with regard to financial aspects of the relationship.

1. The Tribunal places limited weight on any of the financial aspects of the relationship.

Nature of the household

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

1. Whilst the visa applicant provided rental tenancy documents indicating the parties did share properties in both Perth and South Headland, The Tribunal is not satisfied that sharing a rental agreement is sufficient evidence to demonstrate a genuine de facto relationship.

1. Without the attendance of the sponsor at a hearing the Tribunal was limited in its ability to test the claims made by the visa applicant with regard to the nature of the household claimed by the visa applicant.

1. The Tribunal therefore places little weight on the evidence in support of the nature of the parties’ household.

Social aspects of the relationship

1. The Tribunal considered the social aspects of the relationship, including whether parties represent themselves to other people as being in a de facto relationship with 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 Tribunal considered the photographs provided indicating the parties in various locations and settings, and accepts the evidence that the parties likely presented, at some point, to be in a close relationship.

1. The Tribunal heard oral evidence over the telephone from two witnesses, Mr Brijesh Patel and Mr Amarpreet Singh; both of whom were limited in their ability to demonstrate any current knowledge of the parties’ relationship.

1. The Tribunal also notes that both witnesses provided brief signed and undated statements. I note that both witness statements end with identical sentences:

“I always wish them as a very healthy and cheerful life ahead (sic).”

1. The Tribunal is concerned that these written statements were prepared for the witnesses by another party for the purpose of providing declarations to the Tribunal.

1. Without the attendance of the sponsor at a hearing the Tribunal was limited in its ability to test the claims made by the visa applicant with regard to any social aspects of the relationship.

1. The Tribunal places limited weight on the social aspects of the relationship.

Nature of the Commitment to each other

1. The Tribunal considered the 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 Tribunal commenced a scheduled hearing on 23 February 2021 and contacted the sponsor by telephone. The Tribunal asked the sponsor why she provided such late notice to the Tribunal that she would not be attending in person as requested. The sponsor indicated

that she did not want to cause any trouble and was only trying to help the visa applicant as he was a friend.

1. Whilst the sponsor had not undertaken a promise to tell the truth at this hearing, I hold serious concerns that the sponsor does not see the relationship as genuine, or that the parties have any intention to reside together in the future as a genuine de facto couple.

1. I hold significant concerns as to the commitment of the sponsor to the process, noting that the sponsor failed to attend a hearing that had been re-scheduled on multiple occasions specifically so that she could attend in person; and note that the visa applicant was unable to explain her whereabouts on the day of the hearing held on 12 April 2021.

1. Noting the unexplained absence of the sponsor, I place very little weight on the nature of the commitment of the sponsor to the relationship.

1. I therefore find the parties have little claim to any recognition of a genuine de facto relationship as required by s.5CB(2) of the Act.

1. On the basis of the above the Tribunal is not satisfied that the requirements of s 5CB(2) are met at the time the visa application as made or the time of this decision.

1. Therefore, the applicant does not meet cl 820.211(2)(b) or cl 820.221.

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

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Joseph Francis 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).