Singh (Migration) - [2022] AATA 463

Singh (Migration) [2022] AATA 463 (22 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Jagatdeep Singh
VISA APPLICANT:  Ms Arshdeep Kaur
REPRESENTATIVE:  Mr Sukhjinder Pal Singh (MARN: 0960676)
CASE NUMBER:  1900198
DIBP REFERENCE(S):  BCC2018/3775469
MEMBER:Mila Foster
DATE:22 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.211 of Schedule 2 to the Regulations,
·cl 309.213 of Schedule 2 to the Regulations,
·cl 309.221 of Schedule 2 to the Regulations, and
·cl 309.222 of Schedule 2 to the Regulations.

Statement made on 22 February 2022 at 3:13pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship limitation – 5 year time limit – long-standing spouse relationship – previous sponsored relationship did not proceed to marriage – compassionate circumstances – visa applicant visits to the sponsor – periods of joint residence – social recognition of the relationship – business and family plans – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.213, 309.221, 309.222; rr 1.15, 1.20
CASES
Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77
He v MIBP [2017] FCAFC 206
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 28 December 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 15 June 2018 on the basis of her spouse relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The time of application criterion in clause 309.211 is met if the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen: subclause 309.211(2). An applicant who continues to satisfy that criterion at the time of decision satisfies cl 309.221. The time of application criterion in clause 309.213 requires the visa applicant referred to in subclause 309.211(2) to be sponsored by their spouse or de facto partner where such person has turned 18. Clause 309.222 requires the sponsorship of the visa applicant under clause 309.213 to be approved and still be in force at the time of decision: subclause 309.222(1), and the sponsor to have consented to the disclosure by the Department to the visa applicant of any conviction of the sponsor for a relevant offence: subclause 309.222(2).
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.222…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singh (Migration)

Details

AGLC: Singh (Migration) [2022] AATA 463
Case: [2022] AATA 463
Decision Date: 22 February 2022

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309, made by a citizen of India. The review applicant, an Australian citizen, was the sponsor. The core of the dispute revolved around a sponsorship limitation imposed on the review applicant due to a previous relationship that did not proceed to marriage, and the visa applicant's assertion of compassionate circumstances arising from the lengthy separation this limitation would impose. The decision was made by Mila Foster, a Member of the Tribunal.

The legal issues before the Tribunal were whether the visa applicant met the criteria for a Subclass 309 visa, particularly in light of the review applicant's prior sponsorship history and the potential for a five-year separation. The Tribunal was required to consider the nature and duration of the parties' relationship, including their financial, household, social, and commitment aspects, as outlined in regulation 1.15A of the Migration Regulations 1994. The Tribunal also had to determine if compassionate circumstances warranted an exception or special consideration regarding the sponsorship limitation.

The Tribunal found the review applicant to be a credible witness, whose oral evidence was consistent with other evidence presented. The Tribunal considered the totality of the evidence, including written statements, statutory declarations, affidavits from family members, and documentation relating to the parties' wedding. It noted that while the parties had answered "no" to questions about previous sponsorships or relationships, the visa applicant later explained this was due to a misunderstanding of sponsorship rules and a belief that a withdrawn previous sponsorship, which did not lead to marriage, did not need to be disclosed. The Tribunal acknowledged the parties' stated intention to start a family and the hardship of a prolonged separation.

Consequently, the Tribunal remitted the application for the visa to the Minister for reconsideration. The Tribunal directed that the visa applicant met specific criteria for a Subclass 309 visa, namely cl 309.211, cl 309.213, cl 309.221, and cl 309.222 of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The review applicant’s oral evidence at the hearing was clear, forthright and consistent with the other evidence before the Tribunal. The Tribunal found him to be a most credible witness. For that reason and given the totality of the evidence before it, the Tribunal found it unnecessary to take oral evidence from the visa applicant or seek oral submissions from his representative. Summary of claims and evidence According to the claims and evidence presented by the parties the visa applicant is a 27-year-old citizen and resident of India. Her parents and brother reside in India. The review applicant is a 39-year-old citizen and resident of Australia. The review applicant was born in India and a former citizen of India. He has resided in Australia since 23 May 2005 when he arrived on a student visa. He was subsequently granted a skilled permanent residence visa and Australian citizenship. His parents reside in India and his sister is an Australian citizen residing in Australia. The parties met in India on 12 March 2018 and made a mutual commitment to a shared life as a married couple when they married on 4 April 2018. Theirs was an arranged marriage. They were given time to get to know each other and their marriage was entered into with their full willingness. Documents submitted in support of the visa application included: a.written statements made by the visa applicant[4] and the review applicant about the development of their relationship;[5]b.statutory declarations and affidavits made by the visa applicant’s parents[6], the review applicant’s parents,[7] the review applicant’s sister,[8] and the review applicant’s cousin in Australia[9] about the parties’ relationship; c.invitations to the parties’ wedding ceremony and receipts relating to the parties’ wedding reception.[10][4] Department file, f.18.[5] Department file, f.23.[6] Department file, f.43.[7] Department file, f.29.[8] Department file, f.21. [9] Department file, f.22.[10] Department file, ff.39-42, 27-28. The parties stated in the visa application and sponsorship forms that they had not been in previous relationships with other persons. Further, the visa applicant answered ‘no’ to the following questions on the visa application form about any previous sponsorships/nominations by the review applicant: Has this sponsor previously sponsored/nominated a spouse, de facto, prospective spouse or interdependent partner? Has this sponsor been sponsored/nominated to Australia as a spouse, de facto partner, prospective spouse or interdependent partner? The review applicant answered ‘no’ to the same questions on the sponsorship form. In the statutory declaration made by the visa applicant on 14 November 2018 she stated that she was aware of the review applicant’s previous relationship before marrying but she had been unaware of the rules of sponsorship and she believed the review applicant assumed he did not have to advise about the previous sponsorship because it was withdrawn and the previous relationship did not proceed to marriage. She said the review applicant had made a mistake and requested compassionate consideration as 5 years was a long time for a married couple not to live together and they were planning a family.

Decision

Reasons for decision

Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.DECISION The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:·cl 309.211 of Schedule 2 to the Regulations,·cl 309.213 of Schedule 2 to the Regulations,·cl 309.221 of Schedule 2 to the Regulations, and ·cl 309.222 of Schedule 2 to the Regulations.Mila FosterMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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