Singh (Migration)

[2020] AATA 4886

Singh (Migration) [2020] AATA 4886 (26 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nicole Joan Singh

VISA APPLICANT:  Mr Lovepreet Singh

CASE NUMBER:  1925292

DIBP REFERENCE(S):  BCC2018/2085968

MEMBER:Roger Maguire

DATE:26 October 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations.

Statement made on 26 October 2020 at 10:47am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of household – social aspects – nature of commitment – circumstances in which the relationship commenced – speed at which the relationship progressed – high degree of companionship – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 360
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 August 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 10 May 2018 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied that the parties shared a genuine and continuing relationship, to the exclusion of all others.

4. Having considered the material delivered on behalf of the applicant, the Tribunal has elected to proceed with this application via s.360(2)(a) of the Act.

5. The Tribunal has had regard for the voluminous material including submissions by the applicant’s migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

   SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

   Whether the parties are in a spouse or de facto relationship

8. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case, the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

9. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has before it a marriage certificate evidencing a marriage between the applicant and the sponsor having taken place on 24 November 2017. The present visa application was made on 10 May 2018. This evidence satisfies the Tribunal that as at the date of the visa application, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spouse relationship met?

11. Consideration of r.1.15A(3)(a):

    Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

12. The Tribunal accepts that the parties live in different countries, and recognises the inherent difficulties this circumstance presents in combining financial affairs, joint ownership of assets and pooling of financial resources. The Tribunal also notes that the sponsor is in receipt of a pension. The Tribunal notes that the parties share a joint bank account with the Punjab National Bank in India, and also with the Commonwealth Bank in Australia. The couple have taken out health insurance with Bupa, and their membership cards list the applicant, sponsor and her children. The Tribunal notes that the sponsor pays the rent on the home that she and her children occupy, and that it is been submitted that the applicant does not have the financial capacity to contribute to this rent when he is not even in the country. The parties are sharing the expense of the migration agent. The sponsor paid the return airfares to Australia for the applicant when he visited. There does not appear to be a significant level of sharing of household expenses between the parties, however one could hardly expect otherwise when they live in separate countries.

13. Having regard to the fact that the parties live in separate countries, the Tribunal gives little weight to this criterion in its consideration of this application.

    Consideration of r.1.15A(3)(b):

    Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

14. The Tribunal accepts that when the applicant was in Australia, he cohabited with the sponsor, and played a helpful and constructive role in the care and support of her children. The Tribunal notes with concern that the sponsor has significant health issues as do each of her children. The Tribunal also notes with concern that the sponsor was previously in a long‑term but apparently tumultuous marriage which attracted a domestic violence order which was subsequently breached. The Tribunal accepts that this has impacted on the sponsor and her family. The Tribunal has taken into account the statements by various medical practitioners regarding the health problems of the sponsor and her children, as well as the evidence of the sponsor and her parents in relation to the applicant’s involvement with the sponsor’s children and the calming effect he appears to have had on the household.

15. Overall consideration of this criterion weighs in favour of the application.

    Consideration of r.1.15A(3)(c):

    Social aspects of the relationship – including whether parties represent themselves to other people as being married to 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.

16. The Tribunal has had regard for the many affidavits and statutory declarations made by family and friends of the parties. The Tribunal has viewed the many photographs of weddings, family gatherings and social activity. The deponents and declarants all speak with one voice to the effect that the parties do represent themselves to others as being married to each other, and that to the extent possible the parties do undertake joint social activities. In particular, the Tribunal gives weight to the statements by the sponsor’s parents.

17. Overall consideration of this criterion weighs in favour of the application.

    Consideration of r.1.15A(3)(d):

    Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long‑term.

18. The circumstances in which the relationship commenced and the speed with which it progressed create some misgivings in the mind of the Tribunal. The Tribunal is mindful of the fact that the applicant actually proposed marriage to the sponsor a week before he met her. This is, to say the least, unusual. Many would say it is simply incredible. The parties appear to have lived together for a total of around eight months since they met and swiftly married in 2017. The Tribunal has been inundated with over 250 pages of photographs, personal notes et cetera, and some 1,500 pages of text exchanges, some of which contained a little too much detail. It has not been uncommon for the parties to exchange 10 or 20 texts in a minute, and this behaviour has not been confined to a week or two, or even a month or two; it appears to have extended over a period of years. The Tribunal is prepared to infer from this that the parties do enjoy a high degree of companionship, and it is clear from evidence discussed earlier that the applicant provides much-needed emotional support to the sponsor and her family. Both parties have indicated that they view the relationship as a long‑term one, and nothing said by any of their friends or family suggests otherwise. It is very clear to the Tribunal that the sponsor draws a great deal of companionship and emotional support from the applicant. These factors go a long way toward allaying the Tribunal’s misgivings referred to above.

19. Although something of a close call, a consideration of this criterion weighs in favour of the application.

20. Having regard to the foregoing, the Tribunal is satisfied that the parties:

    (a)  are married to each other under a marriage that is valid for the purposes of the Act; and

    (b)  have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

    (c)   have a relationship which is genuine and continuing; and

    (d)  do not live separately and apart on a permanent basis.

21. Accordingly, the Tribunal is satisfied that the parties are in a married relationship for the purposes of s.5(1) of the Act.

22. Therefore, the visa applicant meets cl.309.211.

23. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

24. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations.

    Roger Maguire
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).