Singh (Migration)

[2021] AATA 4318

Singh (Migration) [2021] AATA 4318 (3 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amandeep Singh

CASE NUMBER:  1808633

HOME AFFAIRS REFERENCE(S):          BCC2018/378242

MEMBER:John Longo

DATE:3 September 2021

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) of Schedule 2 to the Regulations; and

·cl 820.221(1)(a) of Schedule 2 to the Regulations.

Statement made on 03 September 2021 at 10:08am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – time of application and time of decision requirements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

CASES
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).

2. The applicant applied for the visa on 24 January 2018 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).

3. The delegate refused to grant the visa on 21 February 2018 on the basis that the applicant did not satisfy cl 820.211(2) of Schedule 2 to the Regulations because Mr Singh did not meet the definition of spouse under s 5F of the Act. Specifically, the delegate noted a lack of evidence of the pooling of resources, shared living arrangements and concern regarding the nature of their commitment to one another.

4. The applicant appeared before the Tribunal on 30 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Pardeep Kaur, who is the applicant's wife and sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal 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 primary criteria to be satisfied at the time of application are that Mr Singh is not the holder of a Subclass 771 (Transit) visa and that he meets one of the alternate requirements set out in cl 820.211(2), (5), (6), (7), (8) or (9): cl 820.211(1).

8. The Tribunal has reviewed Mr Singh’s Department file, which details his visa status at various times. The Tribunal is satisfied that Mr Singh was not the holder of a Subclass 771 (Transit) visa at the time of application. Therefore, the Tribunal finds that cl 820.211(1)(a) is met.

9. The clause relevant to Mr Singh’s circumstances is cl 820.211(2). The key issue for determination is whether, at the time of application on 24 January 2018, Mr Singh was the spouse of Ms Kaur. The Tribunal also considered, at the time of this decision, whether Mr Singh continues to be the spouse of Ms Kaur and meets the criteria in cl 820.221(2) or (3).

   Whether the parties are in a spouse or de facto relationship

10. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, Mr Singh 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 Mr Singh claims to be the spouse of Ms Kaur who is an Australian permanent resident.

11. ‘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 parties’ 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?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Mr Singh and Ms Kaur were married at the Old Treasury Building in East Melbourne, Victoria, on 17 December 2017. A copy of the parties’ Certificate of Marriage is on the Department’s file. 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).

    Are the other requirements for a spouse relationship met?

13. In assessing the issues in reg 1.15A(3) of the Regulations, the Tribunal has had regard to all documents on the Department’s and the Tribunal’s files, as well as oral evidence given at the hearing. The Tribunal found both parties to be open in answering the Tribunal’s questions regarding the matters to be considered under reg 1.15A(3). Their evidence was frank, honest and credible and they spoke about their relationship with simplicity. They gave consistent oral evidence and their answers did not appear rehearsed; rather they were spontaneous and natural.

    The financial aspects of the relationship

14. 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.

15. At the hearing, Mr Singh gave oral evidence about the financial aspects of their relationship. Mr Singh stated that when he returned to Melbourne in February 2018, he was not working and was supported by Ms Kaur, until he started driving for Uber in March 2018. Mr Singh stated that both he and Ms Kaur had a joint account previously but are now utilising accounts in his name at ANZ and NAB. He confirmed that Ms Kaur’s income is deposited into his NAB account, which they are saving towards their daughter’s education.

16. Mr Singh confirmed that his income, which is paid into the ANZ account, is used to pay household expenses such as rent and utilities. Mr Singh stated to the Tribunal that they jointly purchased land in November 2018, paying a $16,000 deposit (5% of the purchase price). They were intending to build a home on the land but were unable to secure finance for the purchase and consequently lost their deposit in 2020. Subsequently, they have been saving towards purchasing a home, having saved $42,000 towards the deposit through accumulated savings and the sale of Mr Singh’s motor vehicle.

17. The Tribunal accepts the parties’ oral evidence about the financial aspects of their relationship. The Tribunal finds, based on the documentary evidence provided, that they are joint tenants of the rental property in which they reside and both jointly liable for this property; the tenancy having been transferred to them jointly, from Ms Kaur’s name, in March 2018. There is also evidence that they have shared day-to-day household expenses and are jointly saving towards mutual goals such as their daughter’s education and to purchase a home. Based on the evidence before it, the Tribunal finds that both at the time of the application and at the time of the decision there is considerable evidence of the pooling of financial resources and the sharing of day-to-day household expenses.

18. The Tribunal notes that Mr Singh submitted some documentary evidence in support of these claims at the time of the application but notes that the evidence was minimal. The Tribunal is satisfied that the evidence provided at the time of the application showed that Mr Singh and Ms Kaur pooled, and continue to pool, their financial resources and that they shared and continue to share their day-to-day household expenses. The Tribunal gives positive weight to the evidence of the financial aspects of the relationship.

    The nature of the household

19. 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. The Tribunal finds that Mr Singh and Ms Kaur have a child and therefore the care and support of their child has been considered by the Tribunal.

20. In relation to the living arrangements, the Tribunal notes that Mr Singh and Ms Kaur have resided together from February 2018. The Tribunal notes that Mr Singh returned to the Gold Coast after their marriage until 12 February 2018. He stated at the hearing that he was working as a Chef in a restaurant, as part of his visa conditions at the time prior to his application for the present visa. Ms Kaur stated that she was also working at the time in aged care and at Domino’s pizza. He stated that once able to move to Melbourne, he moved in with Ms Kaur at her Noble Park unit.

21. Both Mr Singh and Ms Kaur confirmed that they were sharing the household with Ms Kaur’s brother, who moved to Sydney approximately two months ago. They are now residing in the unit with their daughter.

22. Both Mr Singh and Ms Kaur confirmed that Ms Kaur does the majority of the cooking and household chores. Ms Kaur looks after their daughter during the week while Mr Singh is working. Ms Kaur stated that Mr Singh does these tasks on the weekend, including caring for their daughter, while she works at Domino’s pizza. Mr Singh stated, which Ms Kaur confirmed, that Ms Kaur takes their daughter to day care Monday, Wednesday and Friday for about five to six hours. Mr Singh stated that they hope to take their daughter to swimming lessons in the future.

23. The Tribunal is satisfied that, at both the time of application and at the time of this decision, Mr Singh and Ms Kaur have shared household responsibilities and living arrangements. The Tribunal also accepts the parties’ consistent evidence about the division of household chores and tasks, including cooking and cleaning and the care of their daughter since her birth in 2019. The Tribunal gives great positive weight to the evidence of the nature of the household.

    The social aspects of the relationship

24. Whether the parties represent themselves to other people as being married to each other, the opinion of the parties’ friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

25. There is evidence before the Tribunal that, both at the time of the application and at the time of the Tribunal’s decision, Mr Singh and Ms Kaur were continuing to represent themselves to other people as being married to each other. For example, the Tribunal notes the photographs that were submitted from Mr Singh, Ms Kaur and the family together. Mr Singh stated that they would attend the Sikh temple in Keysborough and the Hindu temple in Carrum Downs weekly together prior to the pandemic. Ms Kaur’s uncle would also visit them at home, prior to the pandemic. Mr Singh and Ms Kaur also stated that their respective mothers visited and stayed with them in Australia. The Tribunal has also considered the Form 888 statutory declarations of Mr Singh and Ms Kaur’s friends in support of the application. The Tribunal notes that not all this evidence was before the delegate.

26. Mr Singh and Ms Kaur gave consistent oral evidence about the social aspects of their relationship. Mr Singh stated that their friends visited prior to the pandemic and they have been very welcoming of their relationship. The Tribunal also notes that Mr Singh and Ms Kaur’s family have visited from India and stayed with them. In light of the evidence before the Tribunal, the Tribunal finds that there is social and public recognition of the relationship.

    The nature of the persons’ commitment to each other

27. 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.

28. At the hearing, the parties provided a consistent account of the inception and development of their relationship. They described to the Tribunal that they were introduced to each other through their families, and their meeting in October 2017 was arranged. They both told the Tribunal that after meeting they were both happy with the arrangements and Mr Singh proposed to Ms Kaur. They were married on 17 December 2017. Their evidence to the Tribunal is that they have been in an exclusive and committed relationship for almost four years, having first met in October 2017. The Tribunal gives weight to the evidence of the duration of the relationship as well as the length of time that they have lived together which, based on their oral and written evidence, has been February 2018.

29. They stated that they have jointly enrolled their daughter at a private school and are saving for the expected school fees. They have also been saving towards the purchase of their own home, having saved $42,000 towards the deposit through accumulated savings and the sale of Mr Singh’s motor vehicle.

30. They both told the Tribunal that they saw their relationship as being for the long-term and they were able to give their reasons for holding this view, including their mutual financial plans, purchasing a home and having another child. They showed considerable knowledge of their circumstances, communication and mutual reliance. They were planning for their own future and their child’s education jointly which showed the Tribunal that they see the relationship as long-term. The Tribunal is also satisfied that the factors indicating the degree of companionship and emotional support were evident from the start of their committed and exclusive relationship and this has continued to the present time.

31. The Tribunal accepts that these factors discussed above are indicative of their genuine commitment to the relationship. In light of all the evidence before the Tribunal, the Tribunal finds that the parties see their relationship as long-term. The Tribunal places great weight on the evidence of the nature of each person’s commitment to the other.

32. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act. 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 the application, Mr Singh and Ms Kaur:

    ·had a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5F(2)(b) of the Act;

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

    ·live together and not separately and apart on a permanent basis, as required by s 5F(2)(d)(ii) of the Act.

33. Given these findings, the Tribunal is satisfied that the requirements of s 5F(2) were met at the time of the application.

    Time of application and time of decision requirements

34. The sponsorship requirements in cl 820.211(2)(a)(ii) and cl 820.211(2)(c) must also be satisfied, and, if Mr Singh was not the holder of a substantive visa at the time of application, then the requirements in cl 820.211(2)(d) must also be satisfied.

35. Ms Kaur attended the hearing in the role as Mr Singh’s partner and sponsor. She gave oral evidence before the Tribunal that they financially support each other and will continue to do so. Accordingly, the Tribunal is satisfied that Mr Singh is sponsored by Ms Kaur and that cl 820.211(2)(c)(i) is met. The Tribunal also finds that Ms Kaur is not prohibited by cl 820.211(2B) from being a sponsoring partner and the Tribunal also finds that cl 820.211(2)(a)(ii) is met.

36. Mr Singh’s records evidence him as having been granted a Student (Subclass 573) visa since arriving on June 2008. Prior to applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 24 January 2018, Mr Singh held a Temporary Work (Subclass UC-457) visa. As Mr Singh held a substantive visa at the time of application, the further requirements in cl 820.211(2)(d) need not be met. The Tribunal finds that Mr Singh meets the time of application requirements in cl 820.211(1) as he meets the requirements in cl 820.211(1)(a) and (b), the latter on the basis of meeting all the requirements in cl 820.211(2).

37. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

38. 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) of Schedule 2 to the Regulations; and

    ·cl 820.221(1)(a) of Schedule 2 to the Regulations.

    John Longo
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).