Singh (Migration)

[2020] AATA 6095

Singh (Migration) [2020] AATA 6095 (14 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Iqbal Singh

CASE NUMBER:  1712479

DIBP REFERENCE(S):  CLF2013/12750

MEMBER:Scott Clarey

DATE:14 December 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 14 December 2020 at 10:09am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) –applicant returned to India in November 2017– parties have not lived in the same country for three years – not a genuine spousal relationship – decision under review remitted affirmed

LEGISLATION
Migration Act 1958, ss 5F, 65, 359
Migration Regulations 1994, r 1.15, Schedule 1, 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 24 May 2017 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 (Mr Iqbal Singh, herein Mr Singh) applied for the visa on 18 January 2013 on the basis of his relationship with his sponsor. 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).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221(2) because the delegate was not satisfied the visa applicant was the spouse of the sponsor. Mr Singh submitted a copy of the Department’s decision record with his review application.

4. Mr SIngh appeared before the Tribunal on 4 September 2020 via teleconference to give evidence and present arguments. The Tribunal also received oral evidence from Ms Chelsea Brooke Robinson (Mr Singh’s wife and sponsor, herein Ms Robinson).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the visa applicant (Mr Singh) is the spouse of the sponsor (Ms Robinson) as defined in s.5F of the Act.

7. I have carefully considered the documentary evidence on the Department’s file and the limited amount of new documentary evidence that has been submitted to the Tribunal. I note there is very little recent, new documentary evidence that has been submitted to the Tribunal in support of the relationship. Most of the documentary evidence submitted to the Tribunal dates from 2013–2015 and had already been previously submitted to the Department. The Tribunal also had the benefit of hearing the oral evidence of Mr Singh and Ms Robinson. I note that the parties presented no other witnesses to support their claims.

   Relevant background

8. Mr Singh is a 35-year-old Indian national who (according to Departmental records) first arrived in Australia in 2009 on a student visa. Mr Singh’s student visa ceased in December 2011 and he remained in Australia unlawfully for over a year. Mr Singh claimed to have met Ms Robinson in January 2012 and that they committed to a shared life together in December that year. They were legally married on 22 December 2012 in a ceremony in Melbourne. In January 2013 Mr Singh lodged a combined application for a Partner (Class UK) (Subclass 820) (Class BS) (Subclass 801) visa with the Department, on the basis of being in a spousal relationship with Ms Robinson, although he did not hold a substantive visa at the time of this application. In June 2014 the Department waived the Schedule 3 criteria and in July 2014 Mr Singh was granted the Partner (Class UK) (Subclass 820) temporary visa. On 24 May 2017 the Department refused the grant of a Partner (Residence) (Class BS) visa. In June 2017 Mr Singh lodged an application for review of this decision with the Tribunal. I note that Mr Singh is currently offshore, having departed Australia for India on 24 November 2017. In January 2018 Mr Singh lodged an offshore visitor visa application to visit Australia that was refused by the Department in February 2018. I note that Mr Singh has not returned to Australia since he departed in November 2017, and he and Ms Robinson have not seen each other in person since at least this time (this issue is discussed further below).

   Letter sent to the applicant pursuant to s.359(2) of the Act

9. On 22 June 2020, the Tribunal wrote to Mr Singh, pursuant to s.359(2) of the Act, inviting him to provide further information to support his claims that he and his partner are in a spouse or de facto relationship. The letter included an information sheet, entitled ‘Evidence in Partner Cases’, which outlined the range of circumstances that the Tribunal is obliged to consider pursuant to r.1.15A of the Regulations. Mr Singh requested (and was granted by the Tribunal) an extension of time to provide the information. He subsequently provided information to the Tribunal in a submission on 16 July 2020. I note that while I have carefully considered this submission, the information provided by Mr Singh in his response to the s.359(2) request for information was dated and included various documents (including bank statements, insurance statements, tenancy agreement, utility accounts, telephone bills, statutory declarations, travel receipts and identification documents) dating from 2012–2016, the vast majority of which had been previously submitted to the Department as evidence of their relationship at the time.

   Whether the parties are in a spouse or de facto relationship

10. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case Mr Singh claims to be the spouse of Ms Robinson who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

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 visa applicant’s and sponsor’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.

    Are the parties validly married?

12. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The parties were married on 22 December 2012 in Victoria. The Tribunal has had regard to a copy of the registered marriage certificate that is on the Department’s file. On the evidence, the Tribunal is satisfied 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 spousal relationship met?

13. After careful consideration of all of the evidence before it, the Tribunal has reached the conclusion that Mr Singh is not the spouse of Ms Robinson within the meaning of s.5F of the Act. The Tribunal sets out below its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3) and the reasons for its decision.

    Financial aspects

14. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses and any combined future financial commitments or plans.

15. The Tribunal notes there is very little recent and/or new documentary evidence that has been submitted to the Tribunal in support of the financial aspects of the relationship. Most of the documentary evidence submitted to the Tribunal dates from 2015 and had already been previously submitted to the Department. I have had regard to various documents, including a bank statement from a Westpac account held in the joint names of the parties from 2013, a bank statement from the ANZ bank in the name of Mr Singh from 2013, and payslips dated from 2013 from a previous job held in Australia by Mr Singh. I note that these submissions provide very little insight into the recent financial affairs and/or aspects of the relationship between the parties at the time of this decision.

16. I questioned the parties at the hearing about the financial aspects of the relationship. I note that the parties exhibited some basic knowledge of each other’s work history. For example, Ms Robinson knew that Mr Singh drove airport taxis in India and the rough hours he worked each week. Mr Singh knew basic aspects of Ms Robinson’s work, including rough details about her hours and salary, but did not know the name of the company she had worked at for 10 years. Mr Singh stated that when he was in Australia he was working in a relatively well‑paid job and he would deposit money in his wife’s account, but he no longer does this since returning to India, other than one claimed time. He said that when he had lived in Australia, he had part-owned a restaurant in Wonthaggi and Ms Robinson had helped out there. Mr Singh claimed to still have an interest in the business, although he claimed not to receive any income from it. Ms Robinson stated that because both were working independently, neither of them had any financial interdependence since Mr Singh had returned to India. I accept this.

17. There is no other evidence before the Tribunal of any joint liabilities, joint ownership of major assets, or legal obligations owed by the parties in respect of each other at the time of this decision.

18. I place little weight on the financial aspects of the relationship.

    Nature of the household

19. The Tribunal has considered the nature of the household including any joint responsibility for the care and support of children, living arrangements of the parties and the sharing of the responsibility for housework.

20. I accept that the parties previously lived together for an extended period prior to Mr Singh returning to India in 2017. I note that by their own admission, the parties have not seen each other (and obviously not shared a household) since Mr Singh returned to India in November 2017. As discussed below (and as discussed with Mr Singh at the hearing), I have significant concerns about the fact that the parties have not lived in the same country, or seen each other at all, for three years.

21. I place some negative weight on the nature of the parties’ household.

    Social aspects

22. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being de facto partners, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

23. I note the paucity of any recent evidence before the Tribunal of the parties undertaking joint social activities, socialising together or generally representing themselves to others as being in a genuine and continuing relationship. I note that Mr Singh and Ms Robinson have lived in separate countries and not seen each other for more than three years, since Mr Singh departed Australia for India in November 2017. While there is some limited evidence on file of the parties undertaking social activities together in the past, this evidence is dated and provides little insight into the nature of their relationship at the time of this decision, in particular whether the relationship is genuine and continuing. I therefore place little weight on this dated evidence relating to the social aspects of the relationship.

24. I have also had regard to statutory declarations from friends and/or work colleagues testifying to the genuineness of the relationship. I note that these statements date from 2013 and 2015 and provide little insight into the nature of the relationship at the time of this decision. I therefore give these declarations little weight in determining whether the relationship is viewed as a genuine and continuing spousal relationship in the opinion of the couple’s friends and acquaintances at the time of this decision.

25. I discussed the social aspects of their relationship with the parties at the hearing. The parties demonstrated limited knowledge of each other’s social lives. For example, when I asked Mr Singh about his wife’s friends, he named one but said they’d had a fight. When I asked if he could name any of her closest friends, he could not name any. Mr Singh displayed limited knowledge of his wife’s family. For example, although claiming to be a father figure to Ms Robinson’s daughter, he did not know her age (he said he thought she was 11; she is nine). I note that Mr Singh did know some other aspects of his wife’s daughter’s situation, including what grade at school she was in and some details of her schooling. Mr Singh could name Ms Robinson’s father but did not know her mother’s name and named one of her sisters but said he was not sure if she had any other siblings. I note that at the hearing Ms Robinson stated that she had two sisters but was not close with her family.

26. I note that by their own admission, the parties have not engaged socially together since Mr Singh returned to India in November 2017.

27. For the above reasons, I place some negative weight on the social aspects of the parties’ claimed relationship.

    Commitment

28. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length and time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

29. Having carefully considered all of the evidence of the relationship cumulatively, including issues related to the credibility of Mr Singh, I am not satisfied Mr Singh and Ms Robinson have established that they are in a genuine and continuing relationship or have a mutual commitment to a shared life together to the exclusion of all others.

30. I explained to Mr Singh at the hearing that I had significant concerns relating to the fact that he voluntarily left Australia in November 2017 and has not returned since. I note the parties have not seen each other since this date. I asked Mr Singh at the hearing why he had left Australia in 2017. He stated that he received word that his father was sick and that his father was dependent on him, so he had to return to India to look after him. When I asked Mr Singh how his father was dependent on him when he had lived in Australia since 2008, Mr Singh stated that his mother was deceased and his brother who lives in India was busy. When asked what the nature of his father’s illness was in 2017, Mr Singh gave a vague answer. He said his father had a ‘serious problem’ made a reference to high blood pressure and stated that ‘the main problem was sickness, family sickness’, and words to the effect that some diseases don’t need a diagnosis. I note that Mr Singh’s father is alive and Mr Singh claims to currently live with him in India.

31. I asked Mr Singh if he knew that he did not have travel rights attached to his bridging visa when he decided to depart Australia in 2017 and that he would likely have difficulty returning to Australia if he decided to. In response, Mr Singh gave a vague, confused and contradictory answer. Initially Mr Singh stated that he was aware he did not have travel rights at the time but that he felt compelled to go and see his father. He then appeared to change his response, stating that he knew only when it was too late, once he had commenced his travel. He said he tried to come back after seven days but a consultant told him he couldn’t come back. He said that he had applied to come back to Australia but wasn’t sure when this was, but thought it was close to the time he had left in 2017. Mr Singh stated that he had left Australia on a one-way ticket to India. When I asked why he had a one‑way ticket if he planned to return, Mr Singh gave a vague response stating that he wasn’t sure how long he was planning to stay so he only bought a one‑way ticket. I note that according to Departmental records, Mr Singh lodged an offshore visitor visa application to visit Australia in January 2018 that was refused by the Department in February 2018. I explained to Mr Singh at the hearing that I had significant concerns about his explanations relating to the circumstances under which he had decided to leave Australia in 2017.

32. When asked if the relationship with his wife was continuing, Mr Singh stated that it was and he spoke to her regularly, on average once or twice per week usually via video call. He said they also message each other on apps including Facebook Messenger. When asked why he only spoke once per week to his wife he said that he did not want to disturb her. When I asked Mr Singh why he had not seen his wife in three years – for example, why she hadn’t attempted to visit him in India or they had not met up in a third country – Mr Singh gave vague answers, stating that she had made a plan to come over in April 2020 but that the COVID-19 situation had prevented the trip from occurring. When I noted to Mr Singh that more than two years had elapsed between him leaving Australia and the COVID-19 pandemic disrupting international travel, Mr Singh gave multiple, and at times confused, answers, stating that he lived in Kashmir and soldiers had been killed there and it may not be safe for her to visit due to the political situation. He said there were also issues with the internet there, but it was better now. He then said that they had not reunited for financial reasons.

33. I discussed with Mr Singh the concerns raised in the delegate’s decision relating to his family’s knowledge of his marriage to Ms Robinson. In response, Mr Singh gave a confused, contradictory and at times incoherent response. He stated that his parents did not know he was in a relationship with Ms Robinson. He then stated that he had told them he had a girlfriend but had not disclosed the full extent of the relationship. When I questioned these multiple, seemingly contradictory statements, Mr Singh gave a confused response, stating that his family ‘don’t know anything, they don’t know and I don’t want to tell them because they will not understand’. As I told Mr Singh at the hearing, I find various aspects of his explanation puzzling, relating to what his family knows about the relationship, and indeed if they know of if it at all. However, I note that while the fact that an applicant’s family having an awareness of the relationship is a potentially relevant consideration, including in the context of r.1.15A(3)(c) factors, I do not consider that this knowledge needs to be specific and/or detailed. I also understand that in certain circumstances there may be cultural (and other) reasons why an applicant may not be more forthcoming to their family about a relationship and/or why they may seek not to disclose the existence of it at all. I therefore place no weight on this issue of whether or what Mr Singh’s family knows of his claimed relationship with Ms Robinson, and/or why he has not told them more information about it.

    FINDINGS

1. As outlined to Mr Singh at the hearing, I have deep concerns about the fact that he voluntarily left Australia in November 2017 and has not seen his wife since this time. I am also concerned by the confused and conflicting accounts of why Mr Singh decided to leave and if he knew he could not return when he made this decision. I am also concerned by the paucity of recent evidence that the parties have provided in support of their application, to support their claim that their relationship is genuine and continuing at the time of this decision. I note that I outlined these specific concerns to both parties at the hearing and provided them with additional time after the hearing to provide any documentary evidence to support their oral claims that they have sought to maintain their relationship and have been in regular contact during the previous three-year period they have lived separately and apart in different countries. I discussed with the parties that this may include evidence to support their claims to have regularly corresponded via messaging apps and/or maintained phone contact. I note that the post‑hearing submission from Mr Singh received by the Tribunal on 14 September 2020 did not provide any such evidence, and he only resubmitted a company registration certificate and a copy of his passport that was already on file.

2. I place significant negative weight on the fact that Mr Singh voluntarily left Australia in November 2017 and that he and Ms Robinson have not lived together, or seen each other, since then. Having considered the above aspects, I find there is insufficient evidence before the Tribunal to indicate that Mr Singh and Ms Robinson provide one another with companionship and emotional support, or that they see the relationship as long-term. I acknowledge that some elements of the (dated) documentary evidence presented by the parties does support their claim to have once been in a genuine spousal relationship. However, having carefully considered all of the evidence of the relationship cumulatively and collectively, and noting the paucity of relevant, recent documentary evidence to support claims that the parties have maintained regular contact during the last three years that they have lived in separate countries, I am not satisfied that the weight of evidence supports a finding that the parties are in relationship that is genuine and continuing and/or that they have a mutual commitment to a shared life as a married couple to the exclusion of all others, at the time of this decision.

   CONCLUSION

3. I have considered all of the evidence and information provided by the parties in relation to the matters prescribed under r.1.15A(3) and consider that it is not sufficient to demonstrate that the parties are in a spousal relationship, as defined under s.5F of the Act. The Tribunal finds that at the time of this decision, Ms Robinson is not the spouse of Mr Singh within the meaning of s.5F of the Act. Therefore, the applicant does not meet cl.801.221(2)(c).

4. Furthermore, Mr Singh has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221(2A), (3), (4), (5) or (6).

5. For the reasons above, Mr Singh does not satisfy the criteria for the grant of the visa.

   DECISION

6. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

   Scott Clarey
   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).