Singh (Migration)

[2022] AATA 249

Singh (Migration) [2022] AATA 249 (2 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Manjinder Singh

VISA APPLICANT:  Mrs Lovepreet Kaur Basra

REPRESENTATIVE:  Mr Surinder Singh Partola (MARN: 0958069)

CASE NUMBER:  1820045

DIBP REFERENCE(S):  BCC2016/3866786

MEMBER:M. Edgoose

DATE:2 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 02 February 2022 at 3:49pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country – no participation by visa applicant in review – limited evidence of financial, household and social aspects of relationship, and nature of commitment – visa applicant and child live with review applicant’s parents – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a), 376
Migration Regulations 1994 (Cth), r 1.15A

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 Immigration on 14 June 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 10 November 2016 on the basis of her 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 (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 309.211.

4. The review applicant appeared before the Tribunal on 5 January 2022 to give evidence and present arguments.   

5. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

7. Clauses 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.

8. ‘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 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.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The review applicant submitted to the Tribunal a copy of the marriage certificate between himself and the visa applicant in relation to the marriage that took place on 22 October 2016 in India. The Tribunal is satisfied that, based on the evidence before it, the marriage certificate is valid. 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).

10. At the start of the hearing on 5 January 2022 the Tribunal asked the review applicant if the visa applicant would be taking part in the merit review. The review applicant informed the Tribunal that the visa applicant would not be taking part in the merit review. Therefore, the Tribunal has based its decision on the review applicant’s oral evidence at hearing and the evidence submitted prior to the hearing.

11. At the start of the hearing on 5 January 2022 the Tribunal asked the review applicant if he had anything further to add regarding his comments and responses to the letter sent to him on 28 September 2021. The review applicant informed the Tribunal that he had nothing further to add.

12. On 28 September 2021 the Tribunal sent a letter to the review applicant via his representative. The letter was an invitation for the review applicant to comment on or respond to certain information which the Tribunal considers, subject to the review applicant’s comments or response, could be the reason, or part of the reason, for affirming the decision under review. The review applicant was provided with a copy of the non-disclosure certificate pursuant to s 376 of the Act and asked a series of questions. The Tribunal acknowledges that the review applicant provided comments and responses to the questions asked of him on 12 October 2021. However, the Tribunal considers that although providing lengthy comments and responses, the review applicant did not answer the questions asked of him or refute the validity of the non-disclosure certificate pursuant to s 376 of the Act. For these reasons the Tribunal gives little weight to the review applicant’s comments and responses.

    Are the other requirements for a spouse relationship met?

13. The delegate noted that the requirements outlined in reg 1.15A of the Regulations for a spousal relationship were considered. The Tribunal has also considered these requirements.

    Financial aspects of the relationship

14. The review applicant provided limited oral evidence and documentation to the Tribunal regarding the financial aspects of the relationship. The review applicant told the Tribunal that the parties have no joint ownership of real estate or other major assets; no joint liabilities; limited pooling of financial resources, especially in relation to major financial commitments; that neither party in the relationship owes any legal obligation in respect to the other; and they have limited sharing of day-to-day household expenses.

15. The review applicant informed the Tribunal that they have a joint bank account in India. The applicant submitted to the Tribunal a copy of this joint bank account through Punjab & Sind Bank on 20 August 2020. The Tribunal notes that the submission was a copy of the front page of the account and that it provided no information about the account balance or any transaction history. The review applicant informed the Tribunal that in Australia he has his own individual bank accounts with ANZ and CBA, however, no evidence of these claimed individual bank accounts was submitted to the Tribunal. Given the limited information provided in relation to the joint bank account and the individual bank accounts, the Tribunal gives this submission little weight.

16. The review applicant further stated to the Tribunal at hearing that his wife and mother in-law have a joint bank account, to which he claims to make cash money transfers from Australia on a fortnightly and monthly basis through Western Union. The review applicant further claimed at hearing that he sends money to Indian shops from Australia and pays cash, however, the Tribunal notes that no physical evidence to support these claims was submitted to the Tribunal. At hearing the review applicant said the money was for the payment of day-to-day household expenses and that he has made friends with the local shop keepers in India. Given that the review applicant has not provided any form of physical evidence to support his claims of transferring money, the Tribunal gives this oral evidence little weight.

17. Post hearing, on 12 January 2022 the review applicant submitted to the Tribunal a life insurance policy from India, in which the visa applicant states that her husband, the review applicant, is to receive 100% of any benefit from it. The Tribunal gives this submission little weight.

18. In consideration of the evidence, the Tribunal finds that the couple have not pooled their financial resources. The Tribunal finds for the period of time they lived together they did not share day-to-day expenses as the review applicant stated at hearing that he was responsible for all financial aspects of the relationship. The Tribunal finds no evidence that the couple have committed to joint ownership of real estate or other major assets, or that they have assumed any joint liabilities. The Tribunal finds no evidence that either party owes any legal obligation in respect of the other. Given that the review applicant has spent periods of time living in India with the visa applicant, the Tribunal places little weight on the financial aspects of the relationship given the limited evidence provided to support his claims.

    Nature of the household

19. The review applicant informed the Tribunal that as a couple they have had a child together, and that they share joint responsibly for the child’s care and support. The Tribunal notes that on 10 December 2021 the child was granted a Subclass 101 Child visa and that this is not part of the matter before the Tribunal. The review applicant provided limited oral and physical evidence to support his claim that as a couple they share joint responsibly for the child’s care and support.

20. The review applicant informed the Tribunal at hearing that he purchased a 3-bedroom home in Clyde in which he lives on his own. He further added that he has a mortgage on the property and that the payments are AUD1,650 per month, and that he works for himself as a handyman. The review applicant told the Tribunal that the visa applicant and child live with his parents and that the visa applicant often stays at her parents’ home. The review applicant claimed at hearing that when they have lived together in India the visa applicant would do the cooking, cleaning and household chores and that he would do the vacuuming. He also stated that he would take the child out in the morning and afternoon for one hour each time. 

21. The Tribunal accepts that the couple have a child, however, as the visa applicant did not appear before the Tribunal to corroborate these claims in relation to the nature of the household, the Tribunal places limited weight on the review applicant’s evidence.

    Social aspects of the relationship

22. The review applicant informed the Tribunal that he represents himself to other people as being married because he has a wedding ring. He stated that at the Sikh temple in Lynbrook, they also know he is married and has a child.

23. The review applicant informed the Tribunal that his friends and acquaintances know about the relationship and that the people at the Sikh temple want to see him and his wife and child together in Australia. The review applicant further mentioned that during the pandemic he had worked as a volunteer at the Sikh temple after he returned to Australia in March 2021. The review applicant stated that from 27 January 2020, before the pandemic started, he was in India with his wife and child, and he was not able to return to Australia until 11 March 2021.

24. The Tribunal notes that on 10 July 2018 the review applicant submitted to the Tribunal duplicate copies of affidavits from the review applicant’s parents and the visa applicant’s parents in support of the relationship. However, the Tribunal notes that no other affidavits or statutory declarations of support have been submitted to support the relationship between the couple. The Tribunal gives little weight to the affidavits of support of the relationship from the couple’s parents.

25. The review applicant claimed at hearing that the parties communicated on a daily basis. The Tribunal notes that on 10 July 2018 the review applicant submitted to the Tribunal a number of mobile phone bills, however, at the time of hearing no further telephone bills had been submitted to support his claim that they communicate on a daily basis. Given the lack of current evidence, the Tribunal places little weight on the submission that they communicate on a daily basis.

26. The review applicant claimed that when in India the parties planned and undertook limited joint social activities. The review applicant mentioned that when in India together they went to his father’s sister place, to temple together and to other religious places, several small functions and to the visa applicant’s sister’s engagement. Given the lack of evidence to support this claim, the Tribunal gives little weight to the submission that the parties planned and undertook joint social activities.

27. The Tribunal acknowledges the review applicant has provided some evidence about the social aspects of the relationship, including a copy of the wedding invitation, several affidavits and telephone bills. Given the limited evidence provided both at hearing and beforehand, the Tribunal is not satisfied that the social aspects of the relationship attest to a genuine and continuing spousal relationship between the parties.

    Nature of persons' commitment to each other

28. The review applicant informed the Tribunal that the parties first met in 2015 when he went to the visa applicant’s aunt’s place in India. On 22 October 2016 the review applicant married the visa applicant in India. The review applicant provided no further detail at hearing about when they first met in 2015 and how the claimed relationship developed from that time until they were married. The Tribunal also found that the review applicant was not able to provide clear answers at hearing about the overall duration of the relationship and the length of time that they had lived together. The review applicant said to the Tribunal that they had only lived together for short periods in India. The Tribunal finds this answer puzzling given that the review applicant lived in India between 27 January 2020 and 11 March 2021. Given the review applicant’s response at hearing and the limited evidence provided, the Tribunal gives little weight to the review applicant’s knowledge of the duration of the relationship and the length of time that the persons have lived together.

29. The review applicant claimed at hearing that they draw companionship and emotional support from each other, given that he claimed they speak on a daily basis, and that the visa applicant supports him. The review applicant further added that he sees this relationship as a long term one. Given that the visa applicant was not able to corroborate these claims, the Tribunal places little weight on the review applicant’s oral evidence about the nature of the persons’ commitment to each other.

30. On the basis of the evidence, the Tribunal is satisfied the applicant and sponsor were married to each other under a marriage that is valid for the purpose of the Act. However, based on the lack of evidence, the Tribunal is not satisfied the applicant and sponsor have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship between them is genuine and continuing and that they do not live separately and apart on a permanent basis. On the basis of the above, the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of this decision.

31. As such, the Tribunal finds that the applicant does not meet the necessary requirements for the grant of the visa.

32. On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.

33. Therefore, the visa applicant does not meet cl 309.211 and cl 309.221.

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

    DECISION

35. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    M. Edgoose
    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).