Singh (Migration)

[2021] AATA 1481

Singh (Migration) [2021] AATA 1481 (19 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Robin Singh

CASE NUMBER:  1933168

DIBP REFERENCE(S):  CLF2009/134591

MEMBER:Christine Kannis

DATE:19 March 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221(2) (c) of Schedule 2 to the Regulations

Statement made on 19 March 2021 at 6:22am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Federal Court remittal – parties have been married for more than 12 years – they have two children together – a genuine spousal relationship – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65,
Migration Regulations 1994, r 1.15, Schedule 2, cl 801.221

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 5 November 2015 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 October 2009 on the basis of his relationship with his sponsor, Ms Hannan Gabriel. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant.

3. The visa was refused on the basis that the applicant did not meet cl.801.221(2) because the delegate was not satisfied the applicant and sponsor continued to be in a genuine de facto relationship or genuine spousal relationship.  

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The applicant sought review of the decision and on 24 February 2017 the Tribunal (differently constituted) conducted a hearing after which it affirmed the decision.

6. The applicant sought review of the decision of the first Tribunal and on 27 February 2018 the Federal Circuit Court dismissed the application for review.

7. The applicant sought further judicial review of the decision and on 1 November 2019 the Federal Court of Australia (FCA) set aside the decision of the Federal Circuit Court, quashed the decision of the first Tribunal and remitted the matter to the Tribunal to reconsider and determine the matter according to law. 

8. The applicant was represented in relation to the review by her registered migration agent. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Background

10.   The applicant and the sponsor were married on 27 October 2008. There are two children of the relationship, Jazzleen Kaur Gabriel, born on 22 August 2009 and Amaeya Kaur Gabriel born on 13 May 2020.They also had three other children, all of who were stillborn.  

11.   The sponsor has two older children, Joseph Gabriel and Armani Gabriel, from a previous relationship.

12.   On 14 October 2009 the applicant lodged a combined application for Subclass 820/801 visas and on 13 March 2010 he was granted a Subclass 820 visa. At the time of this decision he no longer holds a Subclass 820 visa.

13.   On 1 May 2015 the Department conducted a site visit at the applicant’s mother’s home in India and spoke to his mother and others. The site visit raised concerns regarding the genuineness of the parties’ relationship.

14.   In addition to taking evidence from the applicant and the sponsor, the first Tribunal received evidence from the applicant’s mother by telephone. The first Tribunal recorded its concerns regarding the applicant’s unreliability as a witness and decided that it was not satisfied that the applicant was the spouse of the sponsor at the time of decision. In making this decision the first Tribunal considered, among other things, 14 statutory declarations provided by the applicant. The Tribunal noted that the declarants did not refer to the applicant’s 2.5 years of incarceration during the periods they claimed to have known him and decided that the withholding of that information significantly reduced the authenticity of the declarations and gave the 14 statutory declarations no weight.

15.   The applicant ultimately lodged an appeal with the FCA. One ground of appeal was successful. In relation to this ground the FCA said:

The thrust of Mr Singh’s complaint is relation to ground 4 is that the Tribunal failed to give proper, genuine and realistic consideration to the merits of his case by a meaningful, intellectual engagement with the evidence contained in statutory declarations to the effect that the relationship he and his wife enjoyed was genuine and ongoing. 

And

In Mr Singh complains that the Tribunal, in substance, has assimilated all 14 statutory declarations as if they were each of identical content and probative value.  It is true that they are brief, at least from the perspective of professional litigators and decision-makers, but they were by no means identical.  All appeared to be in their own handwriting.  Nor were they of identical probative value.  They could not all be dismissed out of hand as inauthentic.  The Tribunal was required to consider each of them in the course of giving proper, genuine and realistic consideration to the merits of Mr Singh’s claim.  It did not do so. 

1. The FCA decided the ground was made out and said:

   Although the Tribunal does not in express terms state that all 14 statutory declarations are fabrications, its statement (at [76]) can only mean that the probative value of each of the declarations was reduced to nil due to an alleged withholding of the fact of Mr Singh’s imprisonment.  In each case, the ‘authenticity’ was rejected.

   It is not explained how the premise of knowledge of Mr Singh’s imprisonment was arrived at.  The Tribunal does not explore with Mr Singh why the 14 declarants would make a false statutory declaration.  The Tribunal’s methodology was to question both Mr Singh and his wife, identify inconsistencies and from there, reason that his credibility was undermined.  However, it went further and then, in effect, reached the same conclusion in respect of all the independent evidence.  ….

   No attempt has been made to treat any of the declarants separately from any other declarant.  No attempt has been made to explore the length of time each declarant knew the couple nor whether the declarants were even aware of the incarceration.  The Tribunal’s conclusion (at [76]), and especially its reasoning for it, was consistent only with a determination that each of the 14 declarants were prepared to complete a statutory declaration as to a state of affairs which was known to them to be untrue.  Given the inadequacy of the reasoning and the deficiency in the reasoning process, this is an extreme conclusion.  One would expect substantially more justification for it. 

   In this instance, the Tribunal’s analysis is such that there is no explanation as to how each of the 14 declarants would know that Mr Singh had been in prison, why each and every one of the 14 declarants would give false evidence about Mr Singh’s relationship and, in any event, what falsities were given.  Mr Singh is left to guess as to how this conclusion was arrived at.  In my view, there is force in the complaint as to the Tribunal’s treatment of the statutory declarations of the 14 declarants.  

2. Prior to the scheduled hearing the applicant’s representative provided documentation which included but was not limited to bank statements, statutory declarations and a written submission. 

   Issue

3. Clause 801.221(2)(c) requires that at the time of this decision the applicant continues to be the spouse or de facto partner of the sponsoring partner. The issue in the present case is whether the relationship between the applicant and the sponsor continues to meet the definition of “spouse” in s.5F of the Act.

   Whether the parties are in a spouse or de facto relationship

4. The evidence before the Tribunal included a Marriage Certificate issued by the Registry of Births, Deaths and Marriages, Perth WA which showed the applicant and the sponsor were married on 27 October 2008.  The Tribunal was satisfied 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).

5. Section 5F 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 husband and wife 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.  In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship as well as evidence with respect to the nature of the household and the persons’ commitment to each other, as set out in r.1.15A(3), which is extracted in the attachment to this decision.

6. The Tribunal considered the r.1.15A(3) matters.

   Financial aspects of the relationship

7. The Tribunal considered the evidence in relation to the financial aspects of the parties’ relationship including the joint ownership of assets, any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party and any sharing of day-to-day household expenses.

8. The applicant is in full-time employment and the sponsor receives Centrelink payments.

9. Commonwealth bank statements for an account in the parties’ joint names were provided. The statements were for a period from 3 January 2021 to 25 February 2021. The deposits included Centrelink payments and salary payments. The debit transactions included payment of day-to-day household expenses.

10. In a written submission the applicant’s representative said the applicant and the sponsor have one major asset, namely a Goalsaver account in the sponsor’s name. The applicant has authority to operate the account. The account balance is $161,526 and this represents a pooling of financial resources in preparation to enter a major financial commitment of buying a house.

11. The applicant and the sponsor have no joint liabilities.

12. The Tribunal accepts that there is a degree of joint pooling of financial resources and sharing of day-to-day expenses. The Tribunal decided that these are indicators of a spousal relationship at the time of decision.  

    Nature of the household

13. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

14. Correspondence addressed to the sponsor at Hurlston Way Koondoola WA in 2021 was provided. The applicant’s Individual Tax Return for the 2019/20 financial year shows his address as Hurlston Way Koondoola WA.

15. In a written statement dated 25 February 2021 the applicant said although he works long hours he tries to help around the house. He said he often does the dishes and cooks barbeque dinners. He said he takes the rubbish out every Sunday and fixes things around the house. He also helps with the care of the parties’ baby daughter by washing bottles and putting her to sleep. In a written statement dated 25 February 2021 the sponsor provided similar evidence.

16. In a written submission the applicant’s representative said the applicant shares responsibility for the care of all the children with the sponsor. He is stepfather to the sponsor’s two children from a previous relationship and has been involved in their lives since 2008. 

17. The Tribunal finds that the nature of the household of the applicant and the sponsor at the time of decision is an indicator of a genuine and continuing spousal relationship.

    Social aspects of the relationship

18. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether parties represent themselves to other people as being in a spousal 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.

19. A Centrelink Income Statement dated 2 February 2021 addressed to the sponsor shows she claims to be partnered for Centrelink purposes.

20. A letter dated 5 February 2021 from Medibank addressed to the sponsor indicates that the sponsor is a member of Medibank and that the policy also covers the applicant, her two children from a previous relationship (Joseph and Amani) and the two children from her relationship with the applicant (Jazzleen and Amaeya).

21. Photos of the parties with family and friends were provided. The photos were dated in 2015, 2016, 2017, 2018, 2019 and 2020 and included various social occasions including birthday and Christmas celebrations.

22. A statutory declaration dated 24 February 2021 made by the applicant’s employer, Mr Regan Udy, was provided. Mr Udy’s reasons for his belief that the parties are in a committed relationship were that the applicant had brought the sponsor to multiple work dinners and had brought the sponsor and the children to work parties. He said the sponsor always comes by the office and she is always his first point of contact when he is unable to reach the applicant.

23. A statutory declaration dated 23 February 2021 made by Mr Travis Price was provided. Mr Price said he had known the applicant since 2016 and said he has been with the sponsor the whole time. No information was provided regarding the frequency of his contact with the parties or his reasons for his statement that they are in a legitimate relationship. Accordingly, the Tribunal gives this evidence no weight.

24. A written statement dated 24 February 2021 made by the sponsor’s friend, Ms Jessie Chalmers, was provided. Ms Chalmers is the godmother of the parties’ two children. Ms Chalmers said she has almost always been present for all of the parties’ children’s birthdays. She said her children and her brother’s children call the sponsor and the applicant aunty and uncle. She said the applicant has taken on the father role of the sponsor’s two older children and treats them as his own children. Ms Chalmers said she first met the applicant in 2008. She recounted events involving the parties over the years and referred to the applicant’s incarceration in 2013. Ms Chalmers has known the parties as a couple for more than a decade and has been involved in their family life. The Tribunal accords this evidence significant weight.

25. A statutory declaration dated 24 February 2021 made by the sponsor’s sister, Ms Yvonne Gabriel, was provided. Ms Yvonne Gabriel said she first met the applicant in 2008. Ms Gabriel said the applicant often cooks for their family celebrations and birthdays. She said the applicant takes care of the sponsor including her emotional wellbeing. She said he brings her a morning coffee to wake her up and gives her back and feet rubs. Given the period of time Ms Yvonne Gabriel has known the parties and their family relationship, the Tribunal accords this evidence significant weight.

26. A written statement dated 24 February 2021 made by the sponsor’s mother, Ms Ahlam Gabriel, was provided. Ms Ahlam Gabriel said she first met the applicant in 2008. She lived with the parties from 2009 to 2011. She said the applicant always calls her mum and the sponsor’s two older children have always known him as their father. She said he is the one who has helped raise them and provide for them financially. Ms Ahlam Gabriel referred to the difficult time when the applicant was incarcerated in 2013. She said the parties have been through a lot of hard times but they are strong and make life better with each other. Given the period of time Ms Ahalm Gabriel has known the parties and their family relationship, the Tribunal accords this evidence significant weight.

27. A statutory declaration dated 18 February 2021 made by Ms Elizabeth Fowler was provided. Ms Fowler said she had known the parties for nine years and said they have two children together. Ms Fowler said the applicant also acts as a father to the sponsor’s other two children. She said the parties and the children regularly attend birthday parties and events together and they are always happy and loving towards each other. No information was provided regarding the frequency of her contact with the parties however given the significant period of time Ms Fowler has known the parties the Tribunal places some weight on this evidence.

28. A statutory declaration dated 21 January 2021 made by the sponsor’s sister-in-law, Ms Samantha Gabriel, was provided. Ms Samantha Gabriel said she had known the sponsor since 2013 and had known the applicant since he was released from prison in 2015. She said she visits their home once a fortnight and said the applicant attends family functions including attending her wedding in 2017 with the sponsor and the children. She said she believes the parties’ relationship to be a true loving relationship but did not provide reasons for her belief. Given the frequency of Ms Samantha Gabriel’s contact with the parties, the Tribunal places some weight on this evidence.

29. A statutory declaration dated 21 February 2021 made by the sponsor’s brother, Mr John Gabriel, was provided. Mr Gabriel said he first met the applicant in 2008. He said he visits the parties’ home once a fortnight and said the applicant attends family functions including attending his wedding in 2017 with the sponsor and the children. He said he believes the parties’ relationship to be a true loving relationship but did not provide reasons for his belief. Given the frequency of Mr Gabriel’s contact with the parties, the Tribunal places some weight on this evidence.

30. A statutory declaration dated 21 February 2021 made by Mr Leslie Chalmers was provided. Mr Leslie Chalmers said he had known the sponsor for more than 30 years and had known the applicant for 13 years. He said he sees the applicant quite often at family events. He said he has seen the parties’ happiness when their daughters were born and their sorrow when they suffered miscarriages. Mr Leslie Chalmers said they are a happy and loving couple and the children always appear happy in the applicant’s company. Given the significant period of time Mr Leslie Chalmers has known the parties and his observations about them, the Tribunal places some weight on this evidence.

31. A statutory declaration dated 10 February 2021 made by Ms Zeynep Tairoska was provided. Ms Tairoska said she has known the parties for nine years. She said in that time they have always been in a committed relationship and are extremely family orientated, sharing responsibilities and supporting each other. Given the general nature of this evidence, the Tribunal gives it limited weight.

32. A statutory declaration dated 18 February 2021 made by Mr Fynn Rajh was provided. Mr Rajh said he had known the sponsor for 10 to 15 years. He said she has a loving and committed relationship with the applicant and said he sees the family regularly and has witnessed them to be good parents including helping them with homework and entertaining them on family outings. The Tribunal gives this evidence some weight.

33. A statutory declaration dated 15 February 2021 made by Mr Glenn Laitt was provided. Mr Laitt said he had known the parties for 4.5 years. He said he has seen them at least two or three times and they treat each other with respect and love and adore each other. Given the general nature of this evidence, the Tribunal gives it limited weight.

1. A statutory declaration dated 21 February 2021 made by Mr Shane Chalmers was provided. Mr Shane Chalmers said he had known the sponsor for 30 years and had known the applicant for 13 years. He said the applicant and the sponsor and their children come to family events and said the parties are a very loving happy couple. Given the general nature of this evidence, the Tribunal gives it limited weight.

2. A statutory declaration dated 22 February 2021 made by Ms Anne Mary Chalmers was provided. Ms Chalmers said she had known the sponsor for 30 years.  She said the applicant and the sponsor are a very happy couple and she has spent Christmas, birthdays, barbeques and other outings with them. She said she supported the sponsor when the applicant was incarcerated. The Tribunal gives this evidence some weight.

3. A statutory declaration dated 22 February 2021 made by Mr Clifford Humphries was provided. Mr Humphries said he had known the sponsor for 20 years and had known the applicant for 13 years. He said he visits them weekly and they are a loving secure family who show love and respect to each other. He said for the past 13 years he has attended many family gatherings such as Christmas, birthdays and family outings. The Tribunal gives this evidence some weight.

4. A statutory declaration dated 23 February 2021 made by Mr Peter Inman was provided. Mr Inman said he had known the sponsor for more than 20 years and said he met the applicant in 2012. He said they are close friends and he visits them once or twice a week. He said the applicant and the sponsor are a loving couple and he often sees them engaging in everyday family tasks together. The Tribunal gives this evidence some weight.

5. A statutory declaration dated 24 February 2021 made by Ms Tahlia Parker was provided. Ms Parker said she had known the sponsor since mid-2017 and said for as long as she had known her she has been in a loving relationship with the applicant.  No information was provided regarding the frequency of her contact with the parties or her reasons for her statement that they and their children are a loving and secure family. Accordingly, the Tribunal gives this evidence no weight.

6. Written statements dated 24 February 2021 made by the sponsor’s eldest daughter, Amani aged 14 and by parties’ daughter, Jazzleen aged 11, were provided. The Tribunal accepts that Amani and Jazzleen each have a good relationship with the applicant and consider him to be an attentive father.

7. A Hostplus superannuation statement dated 12 February 20021 shows the applicant has nominated the sponsor as the sole beneficiary of his policy and has indicated she is his spouse.

8. The Tribunal was provided with the applicant’s Individual Tax Return (ITR) for the 2019/20 financial year in which he nominated the sponsor as his spouse for the financial year.

9. The Tribunal accepted the written evidence and finds the applicant and the sponsor represent themselves to other people, including the Australian Tax Office, as being married to each other and that they engage in joint social activities at the time of this decision.

   Nature of persons’ commitment to each other

10. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

11. A Birth Certificate Jazzleen Kaur Gabriel was provided. The certificate shows the child was born on 22 August 2009 and lists the sponsor as the mother. The father of the child is identified by the name “Robin”. The date of birth of the father is consistent with the applicant’s date of birth.

12. A Birth Certificate for Sajjin Singh Gabriel was provided. The certificate shows the child was not born alive on 13 September 2018 and lists the sponsor as the mother. The father of the child is identified by the name “Robin”. The date of birth of the father is consistent with the applicant’s date of birth.

13. A Birth Certificate for Rayaan Singh Gabriel was provided. The certificate shows the child was born on 25 November 2017 and lists the sponsor as the mother. The father of the child is identified by the name “Robin”. The date of birth of the father is consistent with the applicant’s date of birth.

14. A Birth Certificate for Amaeya Kaur Gabriel was provided. The certificate shows the child was born on 13 May 2020 and lists the sponsor as the mother. The father of the child is identified by the surname “Robin”. The date of birth of the father is consistent with the applicant’s date of birth.

63.   The parties have been married for more than 12 years and their relationship has endured despite the applicant’s incarceration from 2013 to 2015 and the loss of three children. They have two living children together. 

1. In a written statement dated 25 February 2021 the applicant said their future plans include buying a house together which has not been possible as yet due to his visa status. In a written statement dated 25 February 2021 the sponsor provided similar evidence.

65.   In a written submission the applicant’s representative said that the parties have supported each other through three stillbirths, the applicant’s imprisonment and the uncertainty of the applicant’s visa status.

1. The Tribunal finds that the parties have been married for more than 12 years and that they see their relationship as long-term. The Tribunal is satisfied that they provide each other with companionship and emotional support at the time of this decision.

   Site visit

2. The Tribunal had regard to the information recorded in the site visit report.  

3. In a written submission the applicant’s representative said the site visit report is almost six years old and the weight of the evidence since the site visit strongly suggests that the findings and conclusions drawn from the visit were incorrect. The applicant’s representative further said the findings and conclusions were also based on conjecture and the writer’s opinion which stereotyped what can be considered normal for an Indian family.

4. The Tribunal acknowledges the Department’s and the first Tribunal’s concerns regarding the site visit report however the longevity of the parties’ marriage and the evidence provided by friends and family members far outweighs these concerns.

   Conclusion

5. The Tribunal accepts that the applicant and the sponsor are in a genuine spousal relationship. The Tribunal placed significant weight on the social aspects of the relationship and the nature of the parties’ commitment to each other.

6. Regarding whether the requirements of s.5F are met at the time of decision, the Tribunal decided:

   • the parties are married to each other under a marriage that is valid for the purposes of the Act;
   • they are living together;
   • they have a mutual commitment to a shared life as husband and wife to the exclusion of others; and
   •  that the relationship is genuine and continuing.

7. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore, the applicant meets cl.801.221(2)(c).

8. The appropriate course is to now remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.

   DECISION

9. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

   ·cl.801.221(2)(c) of Schedule 2 to the Regulations

   Christine Kannis
   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).