Singh (Migration)

Singh (Migration) [2020] AATA 5478 (20 November 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sarbjit Singh
CASE NUMBER:  2004183
DIBP REFERENCE(S):  CLF2011/93028 CLF2016/34532
MEMBER:Nicholas McGowan
DATE:20 November 2020
PLACE OF DECISION:  Sydney
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 20 November 2020 at 2:38pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) – Subclass 801 (Partner) – Federal Court remittal – genuine spousal relationship – visa and relationship history – validly married – short separation – withdrawal of sponsorship revoked – sponsor’s health and applicant’s support – some inconsistent evidence not fatal to claims – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 360, 366, 368
Migration Regulations 1994 (Cth), r 1.15A; Schedule 8, cl 801.221
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF WRITTEN DECISION AND REASONS
REVIEW

On 11 August 2016 the Minister’s delegate refused to grant the permanent partner (Subclass 801) visa to the applicant.
The applicant sought a review by this Tribunal of that refusal decision.
This Tribunal (differently constituted) undertook a review and affirmed the delegate’s decision of 11 August 2016 on 27 September 2018. That decision was appealed at the Federal Court by the applicant.
On 29 January 2020, the Federal Court made a Judgement to quash the Tribunal’s decision dated 27 September 2018. The Court found two non-disclosure certificates (present on the applicant’s departmental file but later withdrawn/revoked) had not been properly disclosed to the applicant (including relevant information which was consequential to his application).
The matter has, accordingly, been returned to this Tribunal (differently constituted) to determine according to law.
As the Tribunal has been unable to make a favourable decision based on the information before it alone, the applicant was invited to appear before the Tribunal on 19 November 2020.
Under Section 360 of the Migration Act the applicant must be invited to appear before the Tribunal, except in limited circumstances which are not applicable in this matter.
The hearing was conducted as scheduled on Thursday 19 November 2020. Because of the SARS-CoV-2 pandemic, and various government restrictions presently in force, the Tribunal conducted this hearing via telephone. The Migration Act 1958 gives the Tribunal the authority to conduct matters in this way: Section 366(1). Consistent with Section 365(3) of the Migration Act 1958, the Tribunal conducted the hearing without opening it to the public as it is satisfied that during the SARS-CoV-2 pandemic it is impracticable to take oral evidence in public. Accordingly, the Tribunal directed that all the evidence from the participants in this review, be taken in private.
As required under section 368(3)(b) of the Act, the Tribunal has provided to the Secretary a copy of the new documentary evidence provided to the Tribunal by the applicant and upon which material findings of facts have been based.
Background
The applicant is a citizen of India who first arrived in Australia in 2006 on a student visa.
The applicant’s student visa expired in October 2010, after which he remained in Australia as an unlawful non-citizen.
The applicant first met Valerie Fatima Ha, his sponsor (of his Subclass 820/801 partner visa applications), in January 2011. The applicant married his sponsor in March 2011.
On 14 June 2011 the applicant lodged an application for his partner visa applications on the basis of his relationship with his sponsor (who is an Australian citizen by grant).
The 14 June 2011 partner visa applications were refused by the Minister’s delegate on 22 February 2013 because the applicant did not hold a ‘substantive’ visa at the time he applied for the partner visa applications, and no ‘compelling’ reasons justified the ‘waiver’ of the relevant Schedule 3 criteria. The applicant appealed these refusal decisions to the forerunner of this Tribunal, the Migration Review Tribunal (differently constituted).
On 2 December 2013 the Migration Review Tribunal affirmed the Minister’s delegate’s refusal decision of 22 February 2013.
The applicant appealed the Migration Review Tribunal’s decision of 2 December 2013 to the Federal Court, which on 4 August 2014 ordered that Tribunal to reconsider the matter according to law.
On 22 January 2015, the Migration Review Tribunal (differently constituted) found there were ‘compelling’ reason(s) to not apply the Schedule 3 criteria.
On 27 February 2015 a delegate for the Minister granted the applicant the temporary partner Subclass 820 visa.
On 14 June 2016 a Departmental Officer wrote to the applicant and advised him Officers of the Department had visited the applicant’s family home in India to inquire about his family’s knowledge of the applicant’s claimed relationship with his sponsor.
As outlined above, on 11 August 2016 the Minister’s delegate refused to grant the permanent partner (Subclass 801) visa to the applicant. That decision was appealed, and the Federal Court made a Judgement this Tribunal consider the applicant’s matter according to law. The visa applicant’s Subclass 801 visa refusal of 11 August 2016 is the subject of this review.
Neither the applicant or sponsor have declared (nor is there any evidence to suggest) either has been previously married or have any children of any relationship.
Relevantly, the issue in this case is whether the parties are in a spouse relationship
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 this matter, the applicant claims to be the spouse of the sponsor who is an Australian citizen by grant 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.
‘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).
Are the parties validly married?
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 27 March 2011 in Victoria. The applicant has provided the Department and Tribunal with a copy of the registered marriage certificate.
On the evidence before it, the Tribunal is satisfied the parties were married to each other on 27 March 2011 under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).
Accordingly, the applicant satisfies Section 5F(2)(a) of the Act.
CONSIDERATION OF EVIDENCE AND ARGUMENTS
The following oral evidence was provided to this Tribunal (differently constituted), as part of this Tribunal’s initial review (case number 1613680), though the Tribunal notes the applicant was not aware of all the information during this hearing (as outlined in the Federal Court’s Judgment) which is the basis for the Tribunal now reviewing the matter according to law. A summary of the oral evidence is outlined below, though this is not intended to be an exhaustive repetition of all the evidence (a permanent record has been secured through the audio recording of the hearing).
Hearing dated 25 July 2018 - AAT related case number 1613680
In addition to the applicant, the applicant’s wife was present and provided oral evidence and argument at the hearing. Also attending was the applicant’s unregistered ‘migration agent’, Mr Gupal Singh, who the Member permitted to remain present as an ‘assistant’ to the applicant. An interpreter was also present and had been provided by the Tribunal’s Registry at the applicant’s request.
During the above hearing, the applicant provided the following oral evidence before this Tribunal (differently constituted), which has been listened to and considered as part of the current review.
The applicant made the following core points (in summary) before the Tribunal:
The applicant is born 21 January 1986.
The applicant’s is born 16 October 1976, making her nearly 41, 42.
The applicant lives [at Address 1], St Albans since 2014 with his wife and a housemate. The applicant knows the housemate because her father is a friend of his father in India. The applicant refers to his housemate as his sister.
Prior to 2014, the applicant lived at the same address since 2012, with the same two people, though in an older home that was on that same site.
The applicant married his wife (sponsor) on 27 March 2011.
At the time of his marriage he was living with “some people” and they had insufficient space, so moved into a house in Glenroy. The applicant began living with his wife in Glenroy around a month after their wedding, where they remained for around one year.
The applicant does not have work rights. Since 2011 the applicant has not had work rights and said he “never” worked in any capacity.
The applicant said he later applied for work rights, and after he obtain work rights with the Subclass 820 visa, he began training as a truck driver.
The applicant said when the Subclass 820 visa was granted, he had work rights. Since that time, he couldn’t find a truck for training, then found one [a truck] for training.
The applicant said his migration agent had applied for work rights, but he hadn’t received a response from his migration agent. The applicant said he never followed-up. The applicant said if his migration agent had any information his migration agent would have told him.
The applicant’s wife works at Happy Hippo, a kindergarten in Brunswick, since November 2017. The applicant said she didn’t work before that (but did work in “replacements” [placements] for around three-weeks in St Albans). The applicant said she worked to gain experience during that period to gain her certificate III (which was part of her Diploma of Early Childhood Educational and Care).
The applicant told the Tribunal his wife had finished secondary school (Year 12) somewhere near Flemington, though could not name her school.
The applicant did not know what his wife did after she finished school. He recalled his wife lived in Dandenong when they first met. He did not know who she was living with at that time, or how long she’d lived there. The applicant could not describe his wife’s background prior to his meeting her, except to say she worked in a factory, but he didn’t know the details as it was a long-time back, though she had told him. The applicant said his wife came to Australia as a child, around 1983 or 1984, from East Timor. The applicant said he didn’t know the circumstances around why her family immigrated to Australia. The applicant was asked whether he knew her family, and the applicant aid “No”, as she has no contact with them, and has lost contact. The applicant said he never asks her about her family after asking once, and she didn’t answer. The applicant said his wife has three sisters and one brother, who he named.
The applicant said he has not been married previously.
The applicant said his wife has not been married, though he’s never asked about her previous relationships, as he is “not looking at her past”.
His wife’s job is as a ‘room-leader’ at Happy Hippo kindergarten, on Victoria Street, in Brunswick. The applicant said although he asks about her work, she says to him she cannot tell him, for example, how many kids she looks after because it is the policy of the kindergarten not to disclose any details of her work. The applicant said she looks after the children, changes nappies, though doesn’t know the ages of the children, as his wife cannot disclose any details to him.
Other than his wife’s past factory work, the applicant is only aware of his wife working full-time at Happy Hippo (where she started since November 2017 and is the only job she had since they been together).
Prior to the applicant’s wife working, she received money from Centrelink, though he does not know what benefit or payment(s) she received.
The applicant told the Tribunal he and his wife have been many places together for holidays, and named the Dandenong Ranges, Phillip Island, and Craigieburn.
The Tribunal raised an April 2016 withdrawal of sponsorship by the applicant’s wife [from the applicant's partner visa application]. The applicant explained that he’d not seen his parents since 2010 and his mother was in hospital at the time. At that time the parties were experiencing medical and financial difficulties. The applicant said he didn’t wish to cause his wife any stress, and therefore didn’t want to share his family’s problems with her. The applicant said as that time he wanted to go to India to see his family, though his wife wanted to go with him. The applicant said they could not afford the $10,000.00 he estimates it would have cost for them both to travel to India at the time.
The applicant therefore left the joint home, unannounced, and without a fight, and did not return for nine days. During this period the applicant stayed with a friend. The applicant did not take a phone charger. The applicant wanted to spare his wife stress, and that is the applicant’s explanation for not telling his wife he was leaving their home [and was not in any contact for nine days]. When the applicant returned to the family home, the applicant and wife talked about his reasons for leaving, notably his mother being unwell. The Tribunal discussed with the applicant the apparent inconsistency between what the applicant has said at the hearing (there was no fight before he left the family home) with his own previous written statement, and his wife’s statement dated 17 July 2018, in where they each (separately) refer to an “escalation” (in her written statement), and the applicant’s written statement which refers to having a fight (at paragraph 17) of his own statement.
The applicant’s attention was also brought (by the Tribunal) to the part of his written statement in which he refers to himself as a “truck driver”. The applicant claims he describes himself as one, though he was only training to be one. The Tribunal raised this matter as the applicant earlier oral evidence before the hearing was that he had not worked at all prior to his Subclass 820 visa.
The applicant was asked about his wife’s work patterns and commute. The applicant said his wife gets to work by walking to the nearby train station (travels Brunswick to North Melbourne) and currently work’s a 10:00am until 6:00pm, though each month she has a new roster (and potentially changed shifts).
The applicant has a joint bank account with his wife and have joint keycards. His wife’s salary is deposited into that shared account. The applicant does the administration, electronic, for all the bills. They have no credit cards, assets, debts, and only have the money present in the account.
The applicant said he mostly cooks. He sometimes shops, as does his wife and housemate.
The applicant and his wife rent their property, paying per month. Their housemate’s portion is one-third of the rent.
The applicant is not particularly social, and at this time, he said he had no close friend, no “best friend”.
The applicant said his wife have no close friends, but had colleagues, but could not name any of them. The applicant said he didn’t ask because he is not “interesting in them”. The applicant said that when she finishes work, she just comes home, and reflected they didn’t need other people and enjoyed being together at home (they watch movies together an dhe gives his wife neck and head massage because of her back pain).
The applicant said his wife wanted to spend most of her time with him, though he could not identify any other hobbies, except to say she loves to go outside, and hence why they have been to the Dandenong Ranges, and shopping. The applicant says his wife loves to eat and their favourite restaurant is Indigo. The last time they ‘went out’ was today (the day of this hearing) at Hungary Jacks.
The applicant said he loves to watch interesting programmes (movies), particularly old movies from his own culture.
The Tribunal asked the applicant why he was in a relationship with his wife. The applicant said she was different from other girls, “she is cooperating”, “she is very honest”, “she is helpful to me” (emotionally and mentally). The applicant said some girls are pretending, but his wife was not like that.
The Tribunal asked whether the applicant can recall a time when his wife provided him emotional support. The applicant said that when he came back home from being away nine-days was such an occasion. The applicant added that his wife helps him when he is under stress or looks like he needs help.
The applicant was asked what he and his wife’s plans were for the future. As his wife has only one kidney, and several medical issues, they are giving priority to her health. The applicant also expressed the desire to have a child.
The applicant said he supported his wife, particularly because of her multiple health issues. On occasion he goes with his wife to her medical appointments. The applicant says his wife’s doctor is a “black doctor”. The applicant said his wife sometimes goes to Sunshine Hospital. The applicant was asked what medication, if any, his wife takes. The applicant detailed two medications his wife current takes (two tablets everyday taken in the morning, one of which is for protein).
The applicant said his wife (the sponsor) works Monday to Friday, and never weekends.
The applicant told the Tribunal he and his wife plan to travel to India, and said his wife was excited to do so.
The Tribunal discussed with the applicant the Departmental Officers visit to his hometown and parents in India. The applicant explained the inconsistencies found by the Officers is attributable to languages difference between his parents and the Officers, and his mother’s inability to recall details, even in regard to the birth dates of her own numerous children. The applicant said he’d received permission form his parents for his marriage to the sponsor (his wife).
The applicant confirmed for the Tribunal; that he speaks to his parents multiple times per week (presently).
The Tribunal asked whether the applicant knew when his wife became an Australian citizen. The applicant told the Tribunal he thought she became a citizen in 1984.
The Tribunal then spoke to the applicant’s wife (his sponsor), who provided the following oral evidence and argument(s) in support of the applicant’s partner visa application.
The sponsor said she was born 16 October 1976 making her 41-and-a-half.
The sponsor said her husband is 32/33 years old and was born 21 January 1986.
The sponsor said she lives at [Address 1] Albans and lives with a roommate – who is a distant relative on her husband’s side. The sponsor she they (all three) previously lived in the house at the front of the same lot.

The sponsor said she works as an educator at Happy Hippo, where she started as a casual, and was later prompted to permanent, as a ‘room-leader’, and consequentially works full-time. The sponsor says she’s been employed there since November 2017. The sponsor says she can’t talk much about other stuff because it relates to children. The sponsor said because of the educational policy she didn’t want to speak much about the children, but said she cared for toddlers aged between 12 months and 24 months old. The sponsor said her hours change each monthly and are currently 10:00am until 6:00pm. The sponsor said she gets to work via public transport by walking or bus to the train station, then travels from St Albans to North Melbourne, then gets upfield line to Brunswick station.
The Tribunal asked whether the sponsor’s husband works or has ever worked. The sponsor said “No”. The Tribunal asked why the applicant put ‘truck driver’ in his statement. The sponsor said that he is required to have two years’ experience, and although he has done his training, he does not have the requisite experience yet to work.
The sponsor explained to the Tribunal that the applicant’s work visa was taken from him, though now he has a spouse visa, she is unsure whether he can work or not. Regardless, the sponsor understands he still needs two years’ experience as a truck driver, even though he has his licence, before he can obtain a job.
The sponsor said neither she nor her husband have been previously married.
The sponsor was asked, by the Tribunal, about her study background. The sponsor said she did her Year 12 in 1994, after doing a diploma in Early Education, finishing in 2015 or 2016, in Sunshine, and during that period she did training in St Albans which she finished somewhere in July last year. The sponsor said she met her husband in January 2011. The sponsor said between 1994 and 2002 she did hair dressing and some other courses. The sponsor said she had other jobs, including hair dressing job, and “factory work”. The sponsor says she mainly puts in her resume (covering this period) that she was a factory hand, because before that she was casual with an agency, moving place to place.
The sponsor said that during the corresponding period she was also going through a “rough time”. The sponsor said she did not get along with her father and did not share her parents beliefs. The sponsor said she hadn’t seen her parents since 2009. The sponsor said she did not like to be told what to do and want her own ambition and things. The sponsor said she was born in east Timor (now called Timor Leste) and came to Australia when she was eight (years old), and think it was somewhere near 2004. The sponsor couldn’t tell the Tribunal why her family moved, necessarily, at that time. The sponsor has never returned to East Timor. The sponsor has holidayed, including a trip to German (which she undertook by herself) sometime in 2004. The sponsor struggled to recall whether she’d travelled abroad at any other time, but said she thinks she had travelled to Fiji by herself. The sponsor couldn’t recall when she went to Fiji, though the Tribunal asked whether she’d been twice, which the sponsor confirmed, though could not recall the dates. The sponsor indicated she may have gone with a friend on the first visit to Fiji.
The Tribunal asked the sponsor to explain the period when her husband left the family home for nine-days. The sponsor said she was on Newstart allowance at the time, and her husband wanted to go to India. The sponsor said her husband didn’t tell her why he had to go, and told him if he went, she would go with him. The sponsor said she got so angry and told her he was going somewhere, though she expected he’d go away and cool-off and return. The sponsor said it was a heated argument, at the time, particularly as she was in pain at the time, and her husband was suddenly asking to go to India. The sponsor said her husband’s phone was not working, he was uncontactable, and felt emptiness and alone during that time. The sponsor explained she rang-up the Department and then sent them an email, the night she’d sent an email to the Department her husband returned, though she said he did not know about the call or email. The sponsor said her husband told her his mother was unwell, and he didn’t want to tell her to cause her more stress and apologised to his wife. The sponsor said she had been angry and exhausted and her calling the Department was a big mistake, and she telephoned the Department the following day to advise the relationship had resumed. Other than that incident the sponsor said she and her husband had not been apart for more than a matter of hours, not days, at any period during their relationship.
The sponsor told the Tribunal their roommate shares around one-third of the rent.
The sponsor said both she and her husband each have access to the joint bank account.
The sponsor said she is with her husband because she loves him, his personality, he is soft, he is her companion. The sponsor said they support each other emotionally.
The sponsor said her husband does the household chores, and mostly the cooking, and they both sometimes shop.
The sponsor said her husband’s closest friend(s) was a guy in her marriage “thing” [witness at their marriage ceremony], and then referred to another person (male) who used to share with them [their home] in Glenroy.
The sponsor said at the moment, none, but she had a friend but she no longer as much contact because they are both busy, she refers to this person as “Susan” (who was also at the parties’ marriage ceremony). The sponsor couldn’t recall Susan’s actual name, as it is New Zealander, and she can’t pronounce it.
The sponsor told the Tribunal that not long after they’d met, she told the applicant he’d better be serious about the relationship otherwise he “could go”.
The sponsor told the Tribunal her husband doesn’t have any hobbies or interest, other than watching movies, Bollywood movies and going for a coffee, and shopping. The sponsor recalled she and her husband had been recently to Hungry Jacks.
The sponsor told the Tribunal she doesn’t know what the future holds for them, as it is difficult for her to become pregnant with her medical condition. The sponsor said her husband makes sure she takes her medications, one is a medication, the other a protein, which can be taken at any time. The sponsor said her husband will sometimes takes her to her doctor’s appointments or the hospital, although he stays outside and waits for her. The sponsor’s general practitioner is a lady with of Asian descent. The sponsor said before this doctor, she saw (one-off) another female doctor at a general medical clinic.
The Tribunal discussed the Department’s assertion (as a result of their site visit) that the applicant’s parents had only a vague knowledge of their relationship. The sponsor said they did know she and her husband were married because the applicant had asked for their permission. The sponsor told the Tribunal the applicant’s parents are farmers, and in their early 70s. The sponsor said her husband had expressed the goal of taking her to India, and said she had spoken to them, including a couple f weeks ago. The sponsor was asked by the Tribunal how often she understood her husband spoke with his family. The sponsor told the Tribunal her husband sometimes once a month, sometimes every two months, depending on whether he is busy with her.
In conclusion, the sponsor told the Tribunal she and her husband have been married for 7-and-ahalf-years, and they are genuine. The sponsor said she is building her life and regretted calling the Department and withdrawing her sponsorship because of the consequences that have flowed.
The Tribunal then invited the applicant to respond to several inconsistencies the Tribunal identified.
The sponsor’s oral evidence was that her long-standing doctor (of the past three years) is a lady doctor of Asian descent. The applicant had told the Tribunal (earlier during the hearing) that his wife’s doctor was a man with a black complexion. The applicant explained the difference between their oral evidence is created because he was referring to another, different doctor, from whom the applicant received a medical report. The applicant told the Tribunal they received the medical report (from an alternative doctor) on the advice of his lawyer.
The applicant had told the Tribunal he speaks to his parents every other day, multiple times each week. While the applicant’s wife told the Tribunal (earlier in the hearing) that the applicant spoke only once month, once every couple of months, and recently a couple of weeks ago. The applicant explained this difference in oral evidence between himself and is wife is the product of misunderstanding, as he speaks to many people in the same household, not just his parents. Upon enquiry by the Tribunal (previously constituted) the applicant explained he only told his wife the things he though would not stress her, and for example, didn’t share the fact his mother had a thyroid problem.
Hearing dated 19 November 2020
The Tribunal notes the below oral evidence is in addition to the significant volume of information provided by the applicant and his wife as part of their pre-hearing submissions received by this Tribunal. This voluminous (new) evidence will be shared with the Secretary of the Department. The submission to the Tribunal from the applicant’s representative addresses the considerations outlined in section 5F of the Act, and sub-regulation 1.15A. In conducting this review, the Tribunal invited the applicant and his wife to provide any additional evidence or argument(s). Importantly, the Tribunal notes, and has considered the recent statutory declarations provided by both the applicant and his wife. In particular, the Tribunal notes the applicant’s statutory declaration dated 17 November 2020 which speaks directly, and in considerable detail, to the circumstances of this relationship with his wife as outlined in sub-regulation 1.15A, and the requirements of section 5F of the Act.
The Tribunal also took the opportunity of the hearing to examine and discuss with the applicant and his wife various claimed inconsistencies identified previously by the Minister’s delegate and the previous Administrative Appeals Tribunal Member (differently constituted).
The applicant’s oral evidence
The applicant told the Tribunal he and his wife plan to see (and meet) his parents in India, and travel. He also wants his wife to see “very good doctors” in India to look after her liver cancer. The applicant says they also want to buy another car, a desire he shares with his wife. The applicant said he’d do anything to support his wife, go anywhere and travel anywhere for his wife. The applicant recalled he met his wife in 2011 and exclaimed they have been through hard times and continue to stand together. The applicant says he loves his wife a lot. He believes he made the right decision to marry her. For many years she stood by him when he could not work, and did not, and now he can work, and can stand by her. The applicant said they also want to buy a house together. The applicant told the Tribunal his wife is everything to him, and while she is in stage 4, he wants to do everything to support her, and for her to get better.
The sponsor’s oral evidence

100. The sponsor told the Tribunal she does not understand the previous refusal decision by the Member of this Tribunal. The sponsor said she felt the Member did not understand their circumstances. The sponsor told the Tribunal she has stage 4 bowel cancer, which has since spread to her liver. The sponsor and her husband currently live in the Queensland suburb of Zillmere. The sponsor said she and her husband moved because they needed a change of environment, and because the better weather helps her manage and cope with her cancer treatments. The sponsor cannot work because of her ill-health and the effects from her chemotherapy. The sponsor told the Tribunal they first met in 2011. She said he seemed like a very nice guy, and funny. He liked to tell jokes, even silly ones. They’ve been married for 10 years. The sponsor loves the way he takes care of her and gives her his attention. The sponsor says her husband is very patient with her, even when she irritable because of her treatment regime. The sponsor recalled that on her birthday, he showered her with gifts, though emphasis to the Tribunal the gifts were not the main point, the point for her was that he cared. The sponsor told the Tribunal her husband started work in June of this year, having received his work rights. He works as a truck driver delivering steel. The sponsor told the Tribunal they put his wages, and her Centrelink payment (Disability Pension Support), into their joint account. The Tribunal asked the sponsor what her plans for the future were. The sponsor says she wants to travel to India, buy a four-bedroom house, and buy another car. The parties have started to research and discuss how much a house or apartment would cost. The sponsor says she wants to also travel around the world before anything happens [with her cancer].
Oral evidence from witnesses on behalf of the applicant
Ms Amanda Cruickshank
101. The Tribunal took oral evidence from Ms Amanda Cruickshank born 21 January 1993. The witness is from Melbourne, where she current resides. The witness now works at a different childcare centre in Kensington, though used to work at the same centre as the applicant’s sponsor. The witness told the Tribunal she met the applicant on two occasions, including during a trip to the Zoo in February 2019. The witness met the applicant again in April 2019 when the witness visited the sponsor at the Footscray hospital where she had an operation as part of her cancer treatment. The witness first met the sponsor in 2017, as they were work colleagues at Happy Hippo kindergarten and childcare in Brunswick. The witness worked at Happy Hippo for three years, from 2016 until 2019. The witness said the sponsor was working in different ‘rooms’ as a casual, then permanently, in the toddler room. As the applicant and her sponsor moved to Brisbane in June 2019, she has not seen them since that time. The witness said the sponsor had stopped work earlier, because of her health issues, and because they were planning on moving to Brisbane. The witness said she understood they moved to Brisbane for the change in “environment”, and for warmer weather. The witness said she speaks to the sponsor and her husband several times a week. The witness has no partner or children. The witness told the Tribunal she believed their relationship was genuine based on her observations of them together, and the affection they showed one another in public when she was with them.
Mr Guriqbal Singh
102. The Tribunal took oral evidence from Mr Guriqbal Singh born 27 November 1986 in India. The witness met the applicant in 2016 by chance, as the applicant stopped to aid the witness whose car had broken-down. The witness and applicant both attend the same temple at Craigieburn. The witness told the Tribunal he has met the applicant’s wife on at least six-seven time, mostly at home. The witness married last year in Melbourne, and has one baby boy, two-months old. The witness is an Australian citizen by grant, effective 2015. The witness recalled for the Tribunal his observations when he ate with the parties at their home in Melbourne. The witness shared his observations of them cooking for him, and exchanging in conversation, including about their lives. The witness also travelled to India and met the applicant’s family, who asked him about their son and daughter-in-law and talked about their hope their son would return to India with his wife (the sponsor).
Analysis
103. The Tribunal has read all the evidence and listened to the recording of the oral evidence from this Tribunal's previous (related, though differently constituted) hearing into the review.
104. The Tribunal has conducted a ‘second’ hearing as part of this continued review. As such, it has had the opportunity to query the applicant and his wife, their evidence and arguments, directly.
105. At the time of this decision, the applicant and his wife have been married for nine years.
106. The consistent and reliable evidence, indeed the only evidence before the Tribunal is that the applicant and his wife have lived together their entire marriage, save for nine days.
107. The applicant’s various witnesses, including the two who appeared as part of this review, offered unembellished and relevant oral evidence based on their personal interactions and observations of the parties together, and individually, during the past few years.
108. The oral evidence of the applicant himself has been consistent during this Tribunal's review. This Tribunal also believes the so-called 'inconsistencies' identified in the Tribunal's previous decision do not stand up to closer scrutiny. Even if they did, they are not fatal to the criteria the Tribunal is bound by law to consider.
109. Further, over emphasis on a singular incident where the applicant and his wife spent nine-days apart, as reported because of the prompt notification by the applicant's sponsor, has served to influence consideration of the parties' entire relationship, likely unfairly. There is no evidence either the applicant or his wife has done anything wrong, indeed the actions of the sponsor, when she had a concern, was consistent with the requirements placed upon her under migration law and regulations. Just as the decision-maker was prepared to accept her withdrawal of sponsorship as genuine, so to must be any future decision-maker be prepared (though not without appropriate enquiry) a declaration from the same sponsorship she desired to resume her sponsorship as her relationship with the applicant was continuing. The Tribunal is in no doubt the applicant's wife is genuine, and has entered, and continues her relationship with the applicant, authentically.
110. Likewise, there is no actual evidence the applicant is any less committed. The visit to the applicant's parents in India by Departmental Officers was worthwhile and important, and perhaps reflected some failing by the applicant at that time. But the reality is, there is no legal requirement for parents to possess a certain level of knowledge in respect to their son’s relationship with his wife. In any case, some nine years later, and with the passage of a significant amount of time, the overwhelming evidence before this Tribunal is that the applicant and his wife continue to be in a committed relationship. Their finances are joint. The applicant has relied on his wife financially for many years. They have shared future goals. They share the household shopping, though the applicant does most of the cooking and cleaning. The applicant and his wife have now moved to Brisbane where, for the first time, they live together by themselves. The evidence is that they are largely solitary, though the applicant has now acquired work rights. The consistent evidence, provided over many years, is that the applicant supports his wife emotionally and provides significant psychological stability to her as she now battles stage 4 kidney and liver cancer.
111. The Tribunal found the applicant's oral evidence (at both hearings) to be spontaneous, consistent and therefore reliable and credible.
112. The Tribunal found the applicant's wife's oral evidence (at both hearings) to be candid, heartfelt and credible.
FINDINGS
113. As previously found above, the applicant meets section 5F(2)(a) of the Act.
114. The Tribunal is satisfied that at the time of decision the applicant and sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing.
115. The applicant therefore meets the requirements of section 5F(2)(b) and section 5F(2)(c) for a married relationship.

116. The Tribunal is also satisfied that at the time of decision the parties meet the requirement of section 5F(2)(d) for a married relationship in that they live together.
117. For the above reasons, the Tribunal is satisfied that at the time of decision the parties were in a ‘married relationship’ within the meaning of section 5F(2) of the Act.
118. Therefore, at the time of this decision the Tribunal’s is satisfied the applicant is the spouse, within the meaning of section 5F, of the sponsoring partner.
119. Given all the above, the applicant meets clause 801.221(2)(c).
120. Given these findings, the appropriate course is to remit the Subclass 801 visa application to the Minister to consider the remaining criteria.
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).

[2020] AATA 5478

20 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Natural Justice