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

1. 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).

2. 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.222 due to the sponsorship limitation in reg 1.20J of the Regulations which provides that a period of 5 years has passed since the sponsor has had an sponsorship approved which led to a grant of a Partner visa. The delegate found that Departmental records showed the review applicant was approved as a sponsor of another person who was granted a Subclass 300 (Prospective Marriage) visa, the visa having been applied for on 6 March 2017. The delegate found that compelling and compassionate circumstances affecting the interests of the sponsor had not been demonstrated to warrant waiver of the limitation.

4. The review applicant appeared before the Tribunal via video on 21 January 2022 to give evidence and present arguments. The visa applicant, who was in Australia at the time, also attended the hearing to give evidence.

5. The review applicant was represented in relation to the review. The representative attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether there are compelling circumstances affecting the review applicant such that the sponsorship limitation in reg 1.20 should not be applied and hence the visa applicant meets cl 309.222. The compelling circumstances which the review applicant has submitted included that he and the visa applicant (the parties) are in a long-standing spouse relationship. The Tribunal has thus also considered whether the parties are in a spouse relationship and meet the relevant criteria.

8. The evidence in this case includes the Department file relating to the visa application; supporting documents, photographs and a written submission presented to the Tribunal prior to hearing, the oral evidence the review applicant gave at the hearing, and Department movement records accessed by the Tribunal.

9. The Department file[1] includes a sponsorship form submitted on 18 June 2018 relating to the review applicant’s sponsorship of the visa applicant, a letter sent to the visa applicant inviting her to comment on the review applicant’s previous sponsorship,[2] statutory declarations made by the visa applicant and review applicant on 14 November 2018 in response to that invitation, and information relating to the previous sponsorship.[3]

   [1] The Department file also contains a certificate and notification issued by a delegate of the Minister for Home Affairs under s 376 of the Act notifying the Tribunal that disclosure of material at folio 66 of the file would be contrary to the public interest because it could compromise the effectiveness of the Department’s intelligence gathering tools and contains information given in confidence. However, it is not evident to the Tribunal how the information at folio 66 relates to intelligence gathering or was given in confidence. Hence the certificate and notification does not appear valid. In any event, even it is, the relevant information at folio 66 has already been disclosed to the visa applicant and the review applicant is aware of, namely, the previous sponsorship by the review applicant which formed the basis of the delegate’s decision.

   [2] Letter dated 30 October 2018.

   [3] Folio 60.

10. 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

11. 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.

12. 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.

13. 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.

14. The parties stated in the visa application and sponsorship forms that they had not been in previous relationships with other persons.

15. 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?

16. The review applicant answered ‘no’ to the same questions on the sponsorship form.

17. 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.

18. The review applicant stated in the statutory declaration he made on 14 November 2018 that he had been engaged before and he sponsored his fiancé for a fiancé visa however issues arose, and the relationship ended after a few months. He said that in the meantime his former fiancé was granted the visa and he immediately informed the Department that the relationship had ended and withdrew his sponsorship. He said it was his understanding that the Department had cancelled her visa and that she did not come to Australia. The review applicant said the failure to mention his relationship with his former fiancé and his sponsorship in connection with the visa applicant’s visa application was an innocent mistake. He did not mention the previous relationship or sponsorship because it was not a spouse or de facto relationship they were just engaged and their relationship ended, he had withdrawn the sponsorship and her visa was cancelled. The review applicant apologised for his mistake. He said he understood the limitation was to discourage people looking to rort the system which he said was not the intention of the parties. He stated that a 5-year separation could be damaging to the parties’ relationship, he was already 36 years old and they were planning to have a family and hence requested that discretion be exercised.

19. Supporting evidence submitted to the Tribunal prior to the hearing included:

    a.a statutory declaration made by the review applicant on 14 January 2022,

    b.a statutory declaration made by the visa applicant on 14 January 2022,

    c.documents indicating that the parties were residing at the same address in Australia,

    d.a bank statement relating to a joint account held by the parties,

    e.records said to show calls made between the parties,

    f.82 photographs labelled ‘family photographs’,

    g.statutory declarations from five of the review applicant’s family and friends in which they state why they believe the parties’ relationship is genuine and continuing, and

    h.a submission from the review applicant’s representative.

20. The parties reiterated in the statutory declarations they made on 14 January 2022 their explanation for not declaring the review applicant’s previous relationship and sponsorship and provided the reasons they believed the limitation in reg 1.20J should be waived. Primarily, they stated that they were in a longstanding and genuine relationship. They also said they had spent periods living apart since they married, they had been unable to plan their future together which included hopes to start a business and have a family. They said the uncertain situation was causing stress and anxiety for the review applicant. They said that as the review applicant had lived in Australia since 2005 he had strong social ties here so having to return to live India would impact on him negatively both emotionally and financially. The representative reiterated these claims in his written submission.

21. Relevant to the claim made on review that the parties visited each other in Australia and India after their marriage, Department movement records indicate that the review applicant was outside Australia from 1 September 2019 until 4 March 2020. Department movement records indicate the visa applicant was granted a visitor visa on 5 September 2018. She arrived in Australia on 12 September 2018 and was granted a further visitor visa on 5 March 2019. She departed on 11 August 2019. She was granted a third visitor visa on 13 April 2021 and arrived on 1 August 2021 and has remained in Australia since.

    Whether the parties are in a spouse relationship

22. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen. Submitted in connection with the visa application was the biodata page of an Australian passport issued to the review applicant on 16 December 2010. The Tribunal thus finds that the review applicant is an Australian citizen.

    Are the parties validly married?

23. The visa application included a marriage certificate stating the solemnisation of the marriage between the parties’ on 4 April 2018 in Gurdwara (Punjab, India) had been registered in the Marriage Register under the Punjab Compulsory Registration of Marriage Act, 2012 on 18 April 2018.[11] On the basis of the marriage certificate and the evidence before it, the Tribunal finds that 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?

    [11] Department file, f.14.

24. ‘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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Nature of the household

25. According to the visa application and evidence the review applicant gave at the hearing, since the parties married the visa applicant has resided at his parents’ home in India when she is in India. At the hearing the review applicant stated that after their marriage he has visited the visa applicant in India and she has visited him in Australia and was currently in Australia. He stated that whenever they visited each other they resided together. The movement records confirm that since the parties married, the visa applicant has spent a total of almost 18 months in Australia and the review applicant was outside Australia for 6 months. Documents presented on review indicate that the parties have rented accommodation together and reside at the same address in Australia. The evidence indicates that the parties have lived together since marriage in India and Australia for about 2 years. This is a significant period of time and indicative of a genuine and continuing spouse relationship.

    Financial aspects of the relationship

26. The review applicant stated at the hearing that although the parties had a joint bank account the visa applicant had ceased work upon their marriage. She lived with his parents when she was in India and he supported her financially when she was in Australia. He said the parties had not yet pooled financial resources as they were waiting for the visa applicant to be granted the visa. The Tribunal considers the financial aspects of the parties’ relationship to be consistent with their claimed circumstances.

    Social aspects of the relationship

27. In the written statements made by the parties in support of their visa application they stated that their marriage was arranged by the family of the review applicant’s sister-in-law. They spoke to the review applicant about the visa applicant who was a family friend. They also spoke to the visa applicant and her family and shared photographs of the review applicant. The visa applicant agreed to the review applicant’s uncle and aunt sending him photographs of her. The parties met for the first time at the home of relatives, liked each other and exchanged numbers. Their families were happy and the parties decided to marry. After marrying, they had a wedding party with friends and family at a hotel (in India). The review applicant stayed with the visa applicant until 29 April 2018 during which time the parties travelled to see relatives and friends. After returning to Australia, the parties spoke multiple times a day. The wedding invitation, hotel receipts, photographs, and affidavits and statutory declarations provided by family and friends indicate the relationship developed as claimed.

28. At the hearing the Tribunal asked the review applicant about the photographs he had submitted as they were unannotated. He was able to describe without any difficulty who was in the photographs, the occasions and settings in which the photographs were taken. They show the parties alone and with other people in numerous social settings. There does not appear to the Tribunal to be anything contrived or staged about the photographs. The photographs as well as the statutory declarations from family and friends and the review applicant’s oral evidence indicates that the parties represent themselves to others as a married couple, and have undertaken social activities together and with others in India and Australia. For example, they visit family and friends, attend temple together, go to the city and shopping together.

29. The Tribunal regards the social aspects of the parties’ relationship as a strong indicator that the parties are in a genuine spouse relationship.

    Nature of the persons' commitment to each other

30. The parties have now been married for almost 4 years and lived together for about 2 years. These are significant periods of time. The parties have referred in their written statements to their compatibility, the companionship they draw from each other, that they view their relationship as a life-long commitment and plan to have a family. At the hearing the review applicant said when the visa applicant was granted the visa they hoped to have a baby, buy a home in Australia and have a restaurant business. The nature of the parties’ commitment to each other is indicative of a genuine and ongoing spouse relationship.

    Assessment

31. On the evidence before it the Tribunal accepts that the parties met and married as they claim and finds that at the time of application and time of decision the parties had a mutual commitment to a shared life as a married couple to the exclusion of others, that their relationship was genuine and continuing; and they were not living separately and apart on a permanent basis. The Tribunal is thus satisfied that the requirements of s.5F(2) are met and that the parties were spouses at the time the visa application was made and continue to be spouses at the time of this decision.

1. For the above reasons the visa applicant meets subclause 309.211(2) and hence cl 309.211 and cl 309.221.

   Are the sponsorship requirements met?

   Clause 309.213

2. The Tribunal has found that the visa applicant satisfies subclause 309.211(2). The visa applicant submitted a sponsorship form completed by the review applicant in connection with her visa application. All the documentation before the Tribunal indicates that the review applicant was 35 years old at the time of application. The Tribunal thus finds that the visa applicant was sponsored by her spouse who had turned 18 and hence cl 309.213 is met.

   Clause 309.222

3. At the time of decision, the sponsorship must still be in force and be approved. The review applicant has not withdrawn his sponsorship of the visa applicant. The Tribunal finds that the sponsorship under cl 309.213 is thus still in force.

4. Approval of the review applicant’s sponsorship is subject to limitations contained in regulations 1.20J, 1.20KA, 1.20KB and 1.20KC.

5. Regulation 1.20J sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. Under r.1.20J(1), a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of 5 years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: r.1.20J(2). The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

6. Information on the Department file[12] confirms that on 6 March 2017 the review applicant sponsored a former fiancé for a Prospective Marriage visa, he and his former fiancé intended to marry in Australia on 15 August 2017, his former fiancé was granted the visa on 17 July 2017 but he withdrew his sponsorship and her visa was cancelled on 3 August 2017. Hence, under reg 1.20J the review applicant is limited from sponsoring again until 6 March 2022 unless this limitation is waived.

   [12] Folio 60.

7. The parties have now been in a spouse relationship for almost 4 years. The Tribunal regards this as a longstanding relationship. The Tribunal is satisfied that this amounts to compelling circumstances affecting the review applicant such that the limitation in reg 1.20 should be waived.

8. Regulation 1.20KA sets a limit on the period before which certain Parent visa holders can sponsor a person for a Partner visa. Department movement records indicate that the review applicant has only ever held student and skilled visas. The Tribunal is thus satisfied that the limitation in reg 1.20KA does not apply to limit approval of the sponsorship in this case.

9. Regulation 1.20KB applies in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010 and reg 1.20KC in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016. In this case the visa application included an Australian National Police Certificate which certified that no disclosable court outcomes were recorded against the review applicant.[13] There is no evidence before the Tribunal to suggest that the review applicant has been charged with or convicted of any offences of the kind to which these regulations relate. The Tribunal is thus satisfied that regulations 1.20KB and 1.120KC do not apply to limit approval of the review applicant’s sponsorship in this case.

   [13] Folio 52.

10. In light of the above, the Tribunal approves the review applicant’s sponsorship under clause 309.213. As the sponsorship under clause 309.213 is still in force and approved at the time of decision, the requirement in subclause 309.222(1) is met.

11. In response to a question on the sponsorship form, the review applicant consented to the Department disclosing any convictions for relevant offences to the visa applicant. On that basis the Tribunal finds that subclause 309.222(2) is satisfied.

12. The requirements of cl 309.222 are therefore met.

    Conclusion

13. 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

14. 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 Foster
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).