Singh (Migration)

Singh (Migration) [2024] AATA 845 (26 February 2024)
CORRIGENDUM
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ramandeep Singh
REPRESENTATIVE:  Mr Baljit Singh
CASE NUMBER:  1935208
HOME AFFAIRS REFERENCE(S):          BCC2019/2238604
MEMBER:Ian Berry
DATE OF DECISION:  26 February 2024
DATE CORRIGENDUM
SIGNED:23 April 2024
PLACE OF DECISION:  Brisbane
1.AMENDMENT:  The following corrections are made to the decision:

Paragraph 54 is to be deleted from the Tribunal Decision
Ian Berry
Member

DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ramandeep Singh
REPRESENTATIVE:  Mr Baljit Singh
CASE NUMBER:  1935208
HOME AFFAIRS REFERENCE(S):          BCC2019/2238604
MEMBER:Ian Berry
DATE:26 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled Regional Sponsored (Provisional) visa.

Statement made on 26 February 2024 at 1:31pm
CATCHWORDS
MIGRATION – Skilled Regional Sponsored (Provisional) (Class GK) visa – Subclass 489 Skilled - Regional (Provisional) – member of the family unit – genuine and continuing relationship – interfaith marriage – no family recognition of relationship – limited financial evidence – phone records – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cl 489.311; rr 1.03, 1.12, 1.15
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Department) to refuse to grant the applicant a Skilled Regional Sponsored (Provisional) visa under sec 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 24 April 2019. The delegate refused to grant the visa on 5 December 2019 on the basis that the applicant did not satisfy the requirements of cl 489.311 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Clause 489.311 of Schedule 2 relevantly requires the applicant to be a member of the family unit of at the time of decision.
The applicant appeared before the Tribunal on 19 April 2023 and 24 May 2023 to give evidence and present arguments. At the second hearing, evidence was received from the applicant and Ms Donna John (Donna) and Mr Saini. The hearing was held by video link. The services of an interpreter were required in interpreting between English and Hindi. At both hearings, the applicant was represented in relation to the review and the legal practitioner attended both hearings. Reference to ‘couple’ includes the applicant and Donna.
The second day hearing was called by the Tribunal for the applicant to consider whether to call evidence supporting his case particularly of the genuineness of the relationship to the exclusion of all others.
The Tribunal decided to affirm the decision not to grant the applicant a Skilled Regional Sponsored (Provisional) visa.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issues in this review are whether the applicant:
·Is lawfully married to Donna;
·Is a member of the family unit of Donna who had been granted the Subclass 489 visa, by satisfying cl 489.311;
·Their relationship is genuine and continuing and having a commitment to a shared life shared to the exclusion of all others; and
·Continue to live together, or do not live separately and apart on a permanent basis.
The applicant in supporting his claim to be in a genuine and continuing relationship with Donna, provided a substantial number of documents most (if not all) of which were without commentary or explanation as to relevance or information in the document that should be brought to the attention of the Tribunal. It has been for the Tribunal to ascertain, if it can, as to the reason or purpose the information was given. Reference has been provided for the source of the information on the Tribunal’s file which includes the Department file, the Tribunal file and subsequent documents provided by the applicant. The letter ‘C’ refers to the combination of the Department and Tribunal files. These documents with limited description by the Tribunal consists of the following:
(a)Original certificate of marriage dated 15 April 2019: C 14.
(b)Registry marriage certificate registered 15 April 2019: C 15.
(c)Applicant’s passport: C 16.
(d)Certificate Master of Business Administration and statement of academic record: C 20.
(e)Passport of Donna John: C 33.
(f)Statutory declaration of Ms Harpreet Kaur declared 23 April 2019 C 37.
(g)Passport of Ms Harpreet Kaur: C 38.
(h)Statutory declaration of Mr Shivi Saini declared 23 April 2019: C 45.
(i)Passport of Mr Saini: C 46.
(j)Statement of relationship by Ms Donna John undated: C 48.
(k)Statement of relationship by the applicant undated: C 49.
(l)Applicant’s Personal particulars for assessment including character assessment-form 80 dated to 7 May 2019: C 53.
(m)Department letter 20 May 2019 requesting further information: C 71.
(n)Photographs of the couple – wedding ceremony: C 83.
(o)Photographs of the couple with friends (unnamed): C 91.
(p)Photographs of the couple at the reception with unidentified people: C 95.
(q)Photographs of the couple at an unknown location on the wedding day: C 96.
(r)Photographs of the couple with identified 5 other people at the wedding reception: C 97.
(s)Photograph of the couple with 3 other unidentified people at the wedding reception: C 98.
(t)Photograph of the couple with another person under to define: C 101.
(u)Optus account of the Ms Donna John of telephone records between 1 February 2019 – 30 April 2019 particular phone numbers have been highlighted; no names provided: C 102.
(v)Entry condition report 1 May 2019: C 126.
(w)Sovereign property partners trust account receipt 30 April 2019 and 14 May 2019: C 127
(x)Statutory declaration of Baljinder Singh Sidhu: C 129.
(y)Passport of Mr Sidhu: C 130.
(z)Statutory declaration of Deepak Sharma declared 6 June 2019 C 132.
(aa)Passport of Mr Sharma C 133.
(bb)Statement of Mr Shivi Saini dated 16 May 2023: C553.
(cc)Australian Retirement Trust account of Donna dated 18 April 2023: C 554.
(dd)List of documents provided to the Tribunal undated: C 557
(ee)Further statement of the applicant 11 April 2023: C 559.
(ff)Further statement of Donna dated 11 April 2023: C 560.
(gg)CBA bank account 7997, statement number 16, 6 April 2019 – 30 June 2019: C 562
(hh)CBA bank account 7997 in the name of the applicant statement number 15, 9 December 2020 – 8 June 2021: C 571
(ii)CBA bank account 7997 and the name of the applicant, statement number 18, 9 June 2022 – 8 December 2022: C 581.
(jj)Unidentified statement for the period Wednesday, 1 May 2019 and Tuesday, 30 April 2019 showing a purchase from Harvey Norman for $903. No commentary provided but may be a CBA net bank account of Mr Singh: C 586.
(kk)CBA net bank account of Mr Singh: Friday, 3 May 2019 stream purchase from Kmart of $34.50 and a mart furniture Toowoomba $284: C 587.
(ll)Joint smart account for Wednesday, 9 November 2022 relating to expenditure possibly on travelling no commentary provided: C 588.
(mm)Joint smart account concerning payment of migration agents fee for 7 March 2022 no commentary provided: C 589.
(nn)Joint smart account Monday, 6 March 2023 – Saturday, 4 March 2023 detailing expenditure with Murray’s Australia Ltd Redhill: C 590.
(oo)Net bank Saver account with transactions from Sunday, 29 August 2021 to Tuesday, 10 August 2021. No commentary provided: C591.
(pp)Joint smart account for transactions Sunday, 21 March 2021 – Tuesday, 16 March 2021 highlighting any transfers: C 592.
(qq)Net bank account with transactions for Monday, 6 March 2023: C 593
(rr)Joint smart account for transactions around Friday, 3 March 2023: C 594
(ss)Photograph of the applicant Donna and possibly Mr Saini and his wife undated: C 595.
(tt)Photograph of the applicant and Donna at an unknown place on an unknown date: C 596.
(uu)Photograph of the applicant and Donna at an unknown place at an unknown date: C 597.
(vv)Photograph of the applicant and Donna at an unknown place on an unknown date: C 598.
(ww)Photograph of applicant and Donna with another person unidentified at a place unidentified on a date unidentified though appears to be a birthday: C 600.
(xx)Photograph of the applicant and Donna with 3 unidentified persons at a birthday party on a date and place unknown.
(yy)Photograph of applicant and Donna taken by the applicant at a place unknown on a date and identified: C 602.
(zz)Photograph of the applicant and Donna at an unidentified location on an unknown date: C 603.
(aaa)Photographs (2) taken by the applicant on an unknown date at an under identified place: C 604.
(bbb)Photograph of the applicant and Donna taken by the applicant on an unknown date at an unknown place: C 606.
(ccc)Photograph of the applicant and Donna, taken by the applicant, at an unknown place on an unknown date.
(ddd)Submission from applicant’s legal practitioner dated 11 April 2023 including a list of annexures one – 17 inclusive of a passport, marriage certificate, tenancy agreement, joint bank account statement, call log, receipts of purchases together, photographs of the couple & social media evidence, relationship statements – 2023, trip to Brisbane – hotel booking 2023, interfaith marriage article (India) BUPA health insurance, previous call log, joint bank account 2019 – 2021 (Miss D John and Mr R Singh account number 0606 statement 10 (for the period 1 July 2022 30 December 2022) to –, joint rent receipts 2022, rental bond 2022, old lease agreement 2020 and Water Bill 2022: C 109.
(eee)WhatsApp list of telephone calls, chats on unknown dates and in a language other than English: C966 – C 1074.
(fff)a mart furniture sales order 6 March 2021: C 1076.
(ggg)Group photograph at a celebration involving about 27 people possibly at the botanical Gardens in Toowoomba on a date unknown but including the applicant and Donna: C 1077.
(hhh)Photographs of the applicant and Donna with a child taken by an unknown person on an unknown date: C 1078.
(iii)Photographs of the applicant and Donna at a restaurant of unknown location on an unknown date taken by an unknown person: C 1082.
(jjj)Photographs various at locations and dates unknown and unidentified: C 1084 – C 1097.
(kkk)Chat of unknown media showing the applicant and Donna in a self-portrait possibly on 23 December 2022: capital C1098 – C 1101.
(lll)Statement of Donna John made on 11 April 2023: C 1111.
(mmm)Tax invoice with Emporium hotels Southbank 6 and 7 March 2023: C 1113.
(nnn)Unknown sourced article ‘why interfaith marriage in India is getting dangerous’ dealing with marriages between Indian Hindus and Muslims of an unknown author and undated: C1115
The applicant is survived by his mother and 3 siblings of whom he is the youngest and all continue to reside in India and are of the Sikh faith.
Similarly, Donna is survived by her mother and 2 siblings all of whom continue to reside in India. Donna is of Christian faith as are her family.
The applicant has not met Donna’s family and similarly Donna has not met the applicant’s family.
The applicant and Donna are both citizens of India and say they came from the same city. They met for the first time in 2011. Between 2011 and 2014, they met and socialised with each other through Facebook[1], exchanged telephone numbers and continued to meet each other in that 4 year period[2]. Until 2014, their friendship seemingly flourished through their statements. The applicant provides no evidence of the interaction between the couple for this period
[1] The applicant does not provide the Tribunal with any information or documents of the Facebook exchanges, details of their meeting, telephone records or other evidence of the relationship moving to the next level.
[2] From 2011 when they first met to 2014 when the applicant left for Australia to under his studies. He moved to Brisbane.
Neither the applicant nor Donna has anything to do with each other’s families. That has been confirmed in Donna’s statement made on 11 April 2023[3]. Donna returned to India for a holiday where she visited relatives. The applicant has not returned to India. They certainly did not travel together on any holiday. What holidays they have had together and the length of the holidays are matter raised later in this decision.
[3] C2110. Donna says 'we have not met our families yet. They were against our marriage because of different religions. My family does not talk to him and his family the same. This is not uncommon in India as interfaith marriages are frowned upon and families often have major problems because of them.'
The applicant and Donna commenced a friend relationship in 2011. The applicant found Donna to be funny, beautiful and intelligent. The applicant does not refer to their friendship after he leaves for Australia to study and until he meets her in Brisbane.
On 12 November 2014, the applicant arrived in Australia to study and ultimately completed his Master of Business Administration (MBA) at the Brisbane campus of the Central Queensland University. He then was granted an approval to work in Australia having been granted a cl 485 visa on 9 May 2017 with the expiration date of 9 May 2019. They claim to have continued to communicate with each other while the applicant was in Australia studying and Donna was in India. There are no telephone records of their calls, chat sessions with the Facebook he admits to using to communicate with Donna.
In August 2018, Donna arrived in Tasmania, after being granted her 489-visa requiring her to live and work in a regional area of Australia. She chose Tasmania where she lived in Hobart. She was unsuccessful in securing employment. The applicant’s statement[4] of 11 April 2023, provides clarity as to when his love for Donna became official. The applicant does not clarify as to what he means by official.
[4] C 2108: The applicant introduces the time when ‘our official love relationship started in 2018’.
For the interaction between the couple from August 2018 and April 2019 when Donna moves to Brisbane, the only evidence the applicant can rely upon is Donna’s Optus telephone account which has a list of telephone numbers, dates and times telephone calls were made or SMS messages were sent. Such evidence is of very limited value. The Tribunal places little weight on it. Donna’s telephone tax invoice account has a substantial number of SMS and mobile calls of which there is no commentary as to why the calls and texts mean a continuation of a relationship. For the limited convenience of the Tribunal, the calls and SMS communications, from the applicant are ‘highlighted’. The applicant does not disclose the dates or times he contacted Donna while she is in Tasmania by revealing his mobile and account. The applicant does not provide his mobile provider’s tax invoice of his mobile calls and SMS to Donna.
The applicant does not travel to Tasmania. They arrange to meet in Brisbane by Donna coming to Brisbane for a one night/ one day visit. Unsure of the exact date, the applicant believed it to be around 11 August to 15 August 2018. After arriving in Brisbane, not announcing his intentions to Donna, the applicant proposes marriage and she accepts his proposal. The applicant explains, it was not he had planned to propose to her but upon their meeting in Brisbane, he proposes knowing she would accept his proposal.
Donna moves to Brisbane just before they marry on 15 April 2019. On 24 April 2019, as the lawful husband, the applicant applies as the secondary applicant to Donna’s approved 489 visa where she was the primary applicant. From the available evidence, it seems the official relationship happens only weeks before they marry.
As she was on a visa requiring her to work regionally, the applicant and Donna decided to move to Toowoomba, a regional area.
The applicant provides a number of statutory declarations from people who have had little to do with the couple. Mr Saini and the applicant lived in shared accommodation while studying. Mr Saini is the husband of Ms Harpreet Kaur. Both visited the applicant and Donna in Toowoomba while they resided on the Sunshine Coast before moving to South Australia. The applicant’s friend Mr Saini and his wife Ms Harpreet Kaur provide statutory declarations.
Ms Harpreet Kaur (the wife of Mr Saini), both of whom now reside in South Australia, declared on 23 April 2019:
‘I know Ramandeep Singh for four years and Donna John for eight months. I attended their marriage which was held at the General Registry Office, Brisbane, Queensland. After marriage party was held at Dosa Hut, the village, Upper Mount’
Mr Saini’s statutory declaration made 23 April 2019, stated:
‘I know Ramandeep Singh for four years and Donna John for eight months. I attended their marriage which was held at the General Registry Office, Brisbane, Queensland. After marriage party was held at Dosa Hut, the village Upper Mount’
Mr Saini was the only witness to be called to give evidence other than Donna. He, with his wife Ms Kaur, met Donna at the wedding ceremony for the first time. Donna and the applicant moved to Toowoomba and similarly Mr Saini and Ms Kaur moved to the Sunshine Coast and later to Adelaide, South Australia.
There were 2 occasions when Mr Saini and his wife Harpreet Kaur met with the applicant and Donna by visiting them in Toowoomba. On both occasions Mr Saini and Ms Kaur travelled from the Sunshine Coast to Toowoomba to celebrate Ms Kaur’s birthday and in 2019, again with Mr Saini and Mrs Kaur visiting the applicant and Donna in Toowoomba celebrating the applicant’s birthday. He remembers going to 2 or 3 places including the movies.
In 2020, Mr Saini and Ms Kaur again visit the applicant and Donna in Toowoomba for the applicant’s birthday. Mr Saini and his wife again arrived on one day stay overnight and leave the next day. Mr Saini observed that the couple appeared to him to be happy together and he said it was the way they interacted. Ms Kaur was not invited to give evidence at the hearing. The applicant and Donna did not visit Mr Saini and Ms Kaur on the Sunshine Coast. Eventually, the Mr Saini and Ms Kaur moved to Adelaide to take up a regional position to satisfy the regional visa condition. Mr Saini does not speak with applicant but both are on social media like Facebook and follow each other’s activities.
Mr Saini was also aware that the applicant worked 2 jobs. At a 7-Eleven service station and made UberEATS undertaking food deliveries. The applicant owned and used his car to make those deliveries. Mr Saini’s evidence is credible and places some weight on it. The applicant has lived in Toowoomba for a substantial period before the Tribunal hearings. Yet he calls upon his friend Mr Saini to show that his relationship is genuine. It is surprising that neither the applicant nor Donna could call on friends in Toowoomba to confirm the genuineness of their relationship by providing evidence of outings, birthdays, visitors welcomed into their home.
The Tribunal asked Mr Saini as to whether the applicant had worked while they were in Toowoomba but he could not remember. Asked as to what Donna did for an occupation, he also could not remember. However, he was able to remember that for his wife’s birthday they arrived in Toowoomba and around midday may be as late as 1 pm and left around 5 pm to 6 pm the next day. After moving to South Australia in 2020, Mr Saini says they may have spoken a few times but it was mostly on social media Facebook and Instagram.

At the couple’s registry wedding 5 people were present. Mr Saini and Mrs Kaur attended. Mr Saini witnessed the applicant and Donna’s signing the register. At the reception there were 10 to 15 people. Mr Saini knew 2 people. He remembers one person may have been living with them when he studied with the applicant and who may have come to Mr Saini’s place at Salisbury where he was living with the applicant, which would have been around 2014 just thereafter.
The applicant claims to have entered a lawful marriage with Donna on 15 April 2019. That the marriage was genuine, continuing and to the exclusion of all others. The Tribunal is satisfied and finds the applicant and Donna’s marriage is lawful.
The applicant concedes he did not speak to his mother about their marriage before getting married. However, he says that he did speak with his mother about his marrying a Christian person. He wanted to convince her that his marriage was important to him. The applicant’s mother (said to the applicant) she did not want her Sikh son marrying a person not in the Sikh faith. There is no evidence of the applicant’s mother or siblings confirming their knowledge of the marriage. The Tribunal places no weight on whether their respective families new or did not know of their marriage.
The applicant and Donna moved to Toowoomba where they both are gainfully employed. The applicant was employed in 2 positions; a console operator at a Toowoomba service station/convenience store and an Uber food delivery driver (UberEats). The applicant worked mainly night duty as a casual worker and on occasions filled in for other employees on day shifts. The applicant does not receive annual leave because he is a casual employee.
Donna is in full time permanent employment and receives the annual leave, sick leave and other benefits from being a full-time employee. Without the applicant, she has returned to India for about 1 month, to visit her family though there is no evidence of Donna telling her mother or siblings that she is married and married to a man of the Sikh faith. Donna’s evidence is that she had not told her mother she was married for at least some months after the wedding. Her statement of 11 April 2023[5].
[5] C2110: Donna states that ‘we have not met our families yet. They were against our marriage because of different religions. My family does not talk to him and his family the same. This is not uncommon in India as interfaith marriages are frowned upon and families often have major problems because of them.’
The applicant presented documentary evidence. Also, the applicant, Donna and witness Mr Shivi Saini gave their evidence before the Tribunal. That evidence is presented below. As the statutory declarations were brief, the Tribunal decided to set out those declarations in full. As the Tribunal accepts Mr Saini’s evidence as credible, it does not give detailed observation and insight into their relationship, more of a limited overview. Mr Saini had very little contact with the applicant and his wife while in Queensland and before moving to South Australia.
Mr Saini also provided a further statement dated 16 May 2023:
‘I, Shivi Saini here to confirm that I am a friend of Mr Ramandeep Singh. I have known him since 2014. We had lived together for two years. He is a very sincere and law-abiding person. Ramandeep married in 2019 and I was one of the legal witnesses of marriage. I met Raman’s wife Donna John for the first time at their wedding ceremony in the court.
My wife and I had visited Raman and Donna in Toowoomba in 2019 to celebrate my wife’s birthday and then we visited them again in 2020 to celebrate Raman’s birthday on 14 of April. During my stay there I saw them having a great time. They make each other laugh and they care for each other. Both Raman and Donna are a perfect match. They go for outings together like movies and parties etc and post their photos frequently on social media having fun together.
I moved to South Australia permanently but I am still in touch with them. We may not talk regularly but I can assure that both are genuine couples and enjoy each other’s company. They are an inspirational couple.
I declare this information to be true.’
Mr Sidhu was not called as a witness, but did provide a statutory declaration made on 29 May 2019,in very brief terms. He says:
‘I know Ramandeep Singh for four years and Donna John from four months. I know them very well and recognise them as a couple. They usually come to our house as a couple and attended some of our family functions.’
Mr Sidhu is not called to give evidence and his statement is not sufficiently detailed to give an insight into the genuineness of their love for each other.
Mr Sharma provided the following declaration made on 6 June 2019, in support of the applicant:
‘I know Ramandeep Singh for 10 years and Donna John from four months. I know them very well and recognise them as a couple. They usually come to our house as a couple and attended some of our family functions’.
This statement is almost identical with Mr Sidhu’s statement. The Tribunal gives very minor weight to both statements. While the statements are similar they give very little insight of the couple’s interactions and the observations made by the witnesses would support their genuineness in their relationship.
Mr Lalifullah is the franchisee of the 7-Eleven service station outlet in Toowoomba. He is the applicant’s employer. He states in his statutory declaration made on 13 April 2023:
‘I declare that I have known Ramandeep Singh and Donna as a couple for more than four years. During this time, I have witnessed them together on multiple occasions in various locations. As such, I can attest to the fact that they have maintained a committed and loving relationship throughout this time. I have always observed that Raman and Donna are a loving and supportive couple. They seemed to genuinely enjoy spending time together and they always seem to be happy in each other’s company.’
The statement of this witness gives more substance but without the observations substantiating his opinion. His observations may have assisted in showing the couple living together, but he does not talk about the various occasions where he observed them. It seems the witness wishes to support his employee and little weight is given to it.
Ms Pardeep Kaur is a friend of Donna. She works at the Miss India Toowoomba Restaurant and declares 14 April 2023:
‘I hereby declare that I have known Donna and Ramandeep Singh as a couple since three years. I used to work at Salem Aged Care, where Donna worked as a carer. I have seen her husband (Raman) used to pick and drop her at work. I have seen both of them at Punjabi Mela (cultural festivals) together. They go to the movies and shopping together.’
The reference to the applicant taking Donna to work. Donna neither has a car and nor a driver licence. There are no witnesses who are identified as people the couple know in confection with the Punjabi Mela (Culture festival). The witness refers to the couple going to movies together and not with Ms Kaur. Again, the individual statements do not give a window into the lives of the couple. Little, if any weight can be given to it.
Mr Iqbal Singh Buttar is the proprietor of a restaurant in Toowoomba. He makes his statutory declaration on 14 April 2023 and declares:
‘Ramandeep Singh and Donna John are my regular customers. I am the owner of Miss India Toowoomba restaurant. I have seen them together having a good time at my restaurant and my wife also knows Donna because they used to work together. I confirm that they are very loving relationship and I can vouch for them and their genuine they are very loving relationship and I can vouch for them that they are genuine couple.’
Mr Fallon is the manager of the unit complex in which the applicant and Donna reside and declares in his statutory declaration on 14 April 2023:
‘I am the owner occupier of address deleted by the Tribunal Street Toowoomba. During the 20 year period I have lived here, I have managed the Body Corporate approximately 4 years ago, Ramandeep Singh and Donna John moved into unit one as renters. There unit adjoins mine. During this period I have observed a couple who appear to be totally committed. As neighbours, we couldn’t wish for any better. They are very quiet and to help out around the property without being asked.’
The applicant’s initial statement to the Department supporting his application is undated and gives the account of his relationship with his wife Donna:
‘I Ramandeep Singh, son of Kartar Singh address deleted Sunnybank, Qld 4109 writing this letter to describe my relationship with Donna John, how it started and how we married on 15th April 2019.
We met through our common friend in year 2011. After then we became friends on Facebook and we stared chatting and became good friends. We met on several occasions and on parties. I was doing my graduation at that time and after the completion of my graduation in 2013 I decided to move to Australia for my MBA. At that moment Donna was doing a job as a Nurse in India. I moved to Australia in year 2014. Then I got busy with my studies and work. But we do chat with each other as a friend. Then in the year 2017 Donna decided to move to Australia as well. When she came here in Australia in August 2018 we started talking on phone and meeting again. Meanwhile my parents were looking for a girl for me. Then they told me about few girls who they selected for me. Then I realized that I cannot live with other girl because she will not understand me as Donna does. So I asked her and she felt the same for me. Then we decided that we should take our relationship to a next level. As I already know that she is very kind and sensible person. I am very happy that I have decided to marry Donna.
Our marriage date was decided to be 15th April 2019 day after my birth date. We decided to marry at the Registry office Brisbane. We want our marriage to be simple and we celebrated our special day with our friends. It was the best time in my life, spending time with love of my life. Now I think that life without her would be incomplete.
She is currently on 489 Skilled regional provisional visa. I request you to please grant me 489 dependent visa so that I can be together with my wife and support her in every part of life.
I will be highly thankful to you.’
Donna’s undated statement is very similar to the applicant’s statement:
‘I Donna John, daughter of John S Masih address deleted Hobart 7000 writing this letter to describe my relationship with Ramandeep Singh, how it started and how we married on 15^th April 2019.
We met through our common friend in year 2011. After then we became friends on facebook and we started chatting and became good friends. We met on several occasions and on parties. I was doing my job as a nurse and Raman was doing his graduation at that time and after the completion of his graduation in 2013 he decided to move to Australia for his MBA. He moved to Australia in year 2014. Then he got busy with his studies and work. And I was busy with my job.
But we do chat with each other as a friend. Then in the year 2017 I decided to move to Australia as well. When I came here in Australia in August 2018 we started talking on phone and meeting again. Meanwhile his parents were looking for a girl for him. Then they told him about few girls who they selected for him. Then we realized that we cannot live without each other because we found that we were in love. He proposed me and I said yes to him. As I already know that he is very understanding and friendly person. I am very happy that I have decided to marry Raman.
Our marriage date was decided to be 15th April 2019 day after his birth date. We decided to marry at the Registry office Brisbane. We want our marriage to be simple and we celebrated our special day with our friends. It was the best time in my life, spending time with the love of my life. Now I think that life without him would be incomplete.
He is currently on 485 Temporary visa. I request you to please grant him 489 dependent visa so that I can be together with my husband and support him in every part of my life.
I will be highly thankful to you.
Donna J’
The statements are from friends past and present who do not give any observations about their lives together.
Legal context
Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Regulations. Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.
Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is, in this case, the spouse of the family head.
A person is a ‘spouse’ if they are in a ‘married relationship’ with the family head. ‘Spouse’ is defined by sec 5F of the Act, providing the couple must be married to each other in a marriage that is valid under the Act; the couple must have a mutual commitment to a shared life as a married couple to the exclusion of all others; their relationship is genuine and continuing, and that the couple live together or do not live separately and apart on a permanent basis.
When considering whether the above requirements in sec 5F are satisfied and the applicant is the spouse of the family head, the Tribunal may consider any of the circumstances outlined in reg 1.15A as well as other relevant matters. These circumstances are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.
‘Genuine’ is defined in the Oxford English Dictionary as ‘ Really proceeding from its reputed source or author; not spurious; authentic.’ The Macquarie Dictionary has ‘genuine’ meaning ‘being truly such; real; authentic; sincere; free from pretence or affectation’.
‘Continuing’ is given a meaning by the Macquarie Dictionary of ‘ to go forwards or onwards in any course or action; keep on; to go on after suspension or interruption, to last or endure’.
The applicant claims to be in a genuine relationship and is continuing to now. The applicant has had an opportunity to present further evidence from witnesses who have had the opportunity to observe the couple in various locations, events and at home, which may have added credibility to the marriage that it is genuine and continuing. That opportunity has now past.
The applicant’s statement is brief so it is set out in full and it states:
The applicant’s evidence at the hearings is that he had never spoken to his mother-in-law and confirmed Donna had never spoken to the applicant’s mother. Specifically, the applicant never spoke with any member of his family of his impending marriage and confirmed Donna did not speak with her family of her impending marriage.
After marriage, Donna spoke with her brother and raised the issue of her marriage to a Sikh person. Her brother’s attitude to the marriage was ‘just stay there, never bring him here’. Donna’s brother also suggested to Donna, she should divorce him.
The Tribunal raised with the applicant about the marriage giving the applicant a migration outcome which allows him to remain in Australia. He responded ‘No! I would say a big no to this! We married each other because we love each other. This is not the only way I can obtain permanent residency, there are other ways!’
The applicant emphasised that he wanted Donna to be a part of his life and grow old with her. That they have many compatibilities. In response to the suggestion by the Tribunal that a lot of young people might live together first then marry! The applicant responded, ‘We loved each other in 2011.’
There are other matters for the Tribunal to consider. The financial relationship of the applicant and Donna consists of bank statements, rental agreements and invoices in furniture purchases – a queen sized bed and mattress. The bank statements were provided to the Tribunal after the hearings. The applicant did not provide commentary as to the transactions or the features of the bank statements showing their sharing of the finances if that was a factor in their relationship.
The bank accounts given to the Tribunal to consider as supporting evidence consist of a CBA bank account ‘8248’ only in the name of the applicant. The statements have Donna making payments into and from this account. For example, on 8 April 2019, she is paid $400. Regular payments of $100 are paid to the ‘the wife’ through the CBA app. The reason for these payments is not disclosed, as there is no commentary as to how the couple share their finances. Lack of detail makes it easier to draw the inference that of the income each earn they keep for their own use and share common expenses such as rent and groceries.
The couple have a joint CBA account ‘0606’, with bank statements provided for the period 2019 to 2022. The 0606 account is without commentary or a narration as to the transactions happening. For example, there are many debits and credits from and to other accounts such as 9007 and 0614. It can be inferred that one of the accounts is owned by Donna. Transfers of monies per se is not of assistance as it does not necessarily involve a couple’s usual banking transactions. What it may signify is the couple having separate accounts and using the joint account for common expenses or purchases such as paying rent, bonds and purchasing furniture. Other evidence indicates a Netbank account as there are transactions involving purchases.
Transactions in the joint account show the purchase of takeaway food though not indicating the purchaser as the expenditure is consistent with food being consumed by one or 2 people. There are regular transfers from account 8248 and 7997. The payments to Coles suggest the purchase of groceries. This happens regularly.
The applicant’s sole account 8248 consists of one bank statement for the period 6 April 2019 and 30 June 2019. Donna is making regular payments. The transactions shows the transfer from ‘wife’.
The applicant’s CBA sole account 7997 shows the statement 15 is for the period 9 December 2020 to 8 June 2021. The opening balance is $20,235.16 and a closing balance of $16,849.63. Statement 16 is for the period 9 June 2021 to 8 December 2021 with a closing balance of $21,770.94. Statement 18 for the period 9 June 2022 to 8 December 2022 with an ending balance of $23,731.15. Without commentary, it is difficult for the Tribunal to ascertain as to whether this is the savings of the applicant as it is in his account, though Donna has mentioned about saving. No other account has been disclosed of savings as a couple.
The applicant has his 7-Eleven income paid into this account. Regular debits are made from 8248 account to another CBA app ‘0606’. The account holder is unknown as no 0606 statements have been provided. Such debits are in the region of $400 to $500. Donna paid $496 into this account and $70 both transferred on the same date 15 June 2019.
A number of transactions involve transfers to and from other accounts. For example, an account 7997 has monies paid from it and to it. Without an explanation from the applicant, the statements relating to CBA account 7997, has the applicant as the owner of those savings particularly when he is working 2 jobs and he has not taken holidays.
The relevance of the bank accounts is that the applicant has more than sufficient monies to cover a holiday with his wife even though he does not have an accumulation of annual leave. There is evidence of at least one holiday taken by the couple at the Emporium Hotel at Southbank. There are photographs of their document in this event. However, there are no photographs or expenditure relating to Donna and the applicant taking an extended holiday together.
The nature of the household
Other than the account of Mr Saini as to the 2 visits by him and Ms Kaur, little is known of the applicant’s household. Statements have the couple cooking for each other. The applicant and Donna both are in full-time employment with applicant employed in 2 positions. There is no evidence of friends visiting them other than Mr Saini and his wife. With the applicant working 2 jobs and the regular fast food purchased suggests the applicant does not spend enough time at home. He says that his shift work is mostly nights and UberEats would be busy around weekends and dinner times. Combined with his bank account savings, it makes to difficult to see this couple spending very much time together and in taking separate annual leave,
Social aspects of the relationship

Some witnesses touch upon the relationship of the applicant though the interaction with their friends is almost non-existent. The applicant has 2 jobs yet does not interact with his workmates or their partners. Similarly, Donna is employed though there is no evidence of friendships upon which she and her husband have social occasions.
Nature of the relationship to each other
The couple give no details as to their lives together. The applicant did not accompany Donna when she returned to India on a family business . He says that he is casually employed and has not accumulated or used annual holidays, and therefore could not accompany his wife to India to meet her mother or siblings. That is quite understandable if both families do not know of their marriage. On the other hand, the applicant not taking holidays confirms his ability to accumulate savings. Each of which detracts from the couple having a relationship.
The is evidence of the couple having a holiday together at the Emporium Hotel in Brisbane. Photographs were taken where the applicant and Donna are depicted. Some photographs show the couple with others with no commentary as to where the photograph was taken, the occasion or the name and relationship with that other person.
The applicant’s case
the applicant submits through his representative in submission dated 11 April 2023 that the wedding photographs, the Optus call records, tenancy agreements as well as to rental receipt payments and the statutory declaration by Mr Baljinder Singh Sidhu and the statutory declaration provided by Deepak Sharma show the commitment the couple have for each other.[6]
[6] C1687.
Supporting the applicant’s claim, the representative submits that the couple have been renting residential premises for over 3 years and being exclusively devoted to each other by having a joint bank account and ongoing call and text log shows a genuine relationship. Donna has been away more recent times in travelling to India and they have kept in constant touch with each other as expected of a couple in a long-term relationship. There is no evidence of the couple communicating with each other while Donna is in India.
The representative cites as the supporting evidence the annexures referred to in that submission. A summary of the annexures are:
Annexure 1 – the applicant’s passport;
Annexure 2 – the marriage certificate; the
Annexure 3 – joint bank statement;
Annexure 4 – joint bank statement;
Annexure 5 – call log;
Annexures 6 – receipts of purchases together;
Annexure 7 – photos of the couple and social media evidence;
Annexure 8 – relationship statements – 2023;
Annexure 9 – Trip to Brisbane – Hotel Booking – 2023;¶
Annexure 10 – interfaith marriage article – India;
Annexure 11 – BUPA health insurance;
Annexure 12 – previous call log;
Annexure 13 – joint bank account – 2019-2021;
Annexure 14 – joint rent receipts – 2022;
Annexure 15 – Rental Bond – 2022;
Annexure 16 – old lease agreement – 2020; and
Annexure 17 – Water Bill – 2022.
The representative does not help the Tribunal by referring specifically to the documents relied upon, and the evidence in those documents supporting the applicant’s case. For example, the applicant’s passport and marriage certificate does not support the genuineness of the relationship as it may be assumed that some people marry other than for the purpose of showing an intention to the world of the love for each other. The corollary to that statement is that some couples do not marry yet there intention to be together to the exclusion of all others is supported by other evidence.
The representative refers to the join bank account. Annexures 3 and 4 refer to the CBA joint bank account ****0606 (0606) statements 1 – 10 though it appears some statements are missing. No reference is made to the applicant’s savings in his sole bank account
The representative or the applicant must consider it is for the Tribunal to sift through the bank statements to ascertain the support they give the applicant. there are substantial number of WhatsApp photographs, phone text messages WhatsApp text messages all of which is not in English. An Amart sales order dated 6 March 2021 for a queen mattress and a TARA bed. There is little evidence of other household furniture purchased, though it must be assumed that it has been purchased.
The applicant provided the Tribunal with documents supporting his relationship. These documents consisted of:
·A further relationship statement of the applicant.
·A further relationship statement of the Donna.
·Bank account statement in the name of the applicant.
·A washing machine and bar fridge receipt.
·Hotel booking payment.
·Immigration agent payment.
·Bus fare payment.
·Car purchased payment.
·Donna’s surgery payment.
·Emporium foods order purchase.
·Photo with friends and family.
The applicant provides a further statement with that greater detail which gives a further account of the genuineness of their relationship. Set out in full is the applicant’s statement dated 11 April 2023:
‘I, Ramandeep Singh provide this statement in support of my 489-visa application, to provide insight into my relationship with Donna.
I met her in the year 2011 through a common friend. I found her funny, beautiful, and intelligent. Our friendship started in 2011. Our official love relationship started in 2018 when she moved to Australia. After meeting through a mutual friend. we became friends on Facebook and exchanged our numbers. It has been 4 years as a couple and more than 10 years as friends now. She is very understanding and compatible. I think we are made for each other.
We have the same likes and dislikes. I do not like to go out much. Since I moved here in Australia I just stayed at my house. I do not like to travel much. But we go to the movies together and go to eat out at restaurants. That is like a date night for us. We watch TV shows as well, like web series. We have the same interests in watching TV shows. She likes Friends a lot. We watched it five times together. We love fictional movies like Lord of the Rings and Game of Thrones. We watched it together.
Our future plans are to buy our own house first and start a family. Our major goal is to grow old together. We have a joint bank account. I am saving money to buy a house and she is paying all the expenses for the household. She does the cooking. I do the dishes. We do the housework together and shopping together. I always pick and drop her to work because she does not know how to drive.
We are saving for the house. She pays most of the bills. I am not very fond of traveling. We do go to friends’ birthdays and marriage parties. Our hobbies are watching web series and movies together.
We never met each other families because of religious reasons they are against our marriage. I belong to the Sikh religion, and she is Christian, and it is a big deal in India. We see our relationship as long-term. We both provide emotional support to each other. We have been living together since 2019, for over four years.
We celebrate our birthdays and anniversaries. We both love to spend time with each other. She gifted me an iPhone. I gifted her favourite jewellery.
We love and support each other. We know each other for more than 10 years now. It started with Facebook and now it’s a life journey together. I cannot live without her. We have seen ups and downs in our life. But she gives me the strength to cope with all my worries. Our families are against our marriage, but I still hope someday they will understand and accept our marriage and give us blessings.
Kind regards
Ramandeep Singh
11 April 2023’
Donna provides the following post hearing statement:
‘I, Donna John provide this statement in support of my husband's 489 visa application, as a member of my family unit. I met Ramandeep through a common friend. He was very friendly and nice. Our friendship began in 2011 and then slowly we started having soft corners for each other. Our relationship became official when I moved to Australia in 2018.
I met him through a common friend and then we became Facebook friends. We slowly
exchanged our numbers and started meeting till he moved to Australia. We have been a couple for 4 years now, and how time has flown.
Our relationship is going very well. He looked after me so well. I had some health issues and surgery, and he took care of me at that time. That was a really difficult time for me.
We understand each other. We know our likes and dislikes. We have the same interests and its good for us. We go to a shopping center all the time. There is one near our house, Grand Central. We go out and eat at an Indian restaurant.
When I am working, he does special things for me, like cleaning the house or doing laundry and washing dishes. He is not a good cook but still he cooks for me. Bring me everything in bed if I am tired.
As we are married and living together, we are thinking about our future. Our future plans are to buy a house and to start a family. After we get our permanent residency.
We have a joint bank account, and he is 100% Beneficiary in my super. We are saving money to buy our future house and I am doing the most household expenses at the moment. I do most of the cooking. He does help me with washing dishes and laundry. I do not know how to drive so he picks and drops me at work. We do grocery shopping together.
We go to friends’ marriages and birthday parties. We go to our cultural functions with our friends. We go to the movies sometimes as well. As Raman does not like to go out much, we watch web series on the TV together like Friends, Game of Thrones, and Power of Rings. When it is our day off we always watch TV shows together.
We have not met our families yet. They were against our marriage because of different religions. My family does not talk to him and his family the same. This is not uncommon in India as interfaith marriages are frowned upon and families often have major problems because of them.
We see our relationship as long-term. He supported me during my hard times. We support each other emotionally because we do not have family support. We respect each other’s families and religions as well.
We celebrate our birthdays and anniversaries at home. We spend quality time with each other. He gifted me jewellery because I love that, and I bought him an iPhone. We both love and respect each other. Even though we have different religions, we have the same interests and likes. Our families do not support us. There was a time when they stopped talking to me. He was the only one with me supporting me emotionally. He was and is always there for me. I had health issues and he spent sleepless nights with me. I had surgery and he looked after me during that difficult time. He worked hard when I was not doing any job. I do not know if our families will support us in the future. But I know we are always here for each other. I can't wait for our future together and will continue to support my husband no matter what. Our families do not support us, but we support each other.
Kind regards
Donna John
11 April 2023’
CONCLUSION, FINDINGS AND REASONING
The Tribunal’s assessment of oral evidence is approached with the understanding that the following principles generally apply:
(a)Facts may be found based on oral evidence alone. There is no barrier to a fact being found on the uncorroborated evidence of an applicant. There is no requirement that direct evidence by oral testimony or affidavit may only be accepted if corroborated.
(b)However, self-serving statements (including statutory declarations) should be given close scrutiny.
(c)In respect of issues, all of which the Tribunal must be satisfied, where an applicant has given oral evidence about an issue which is material to a criterion but not accompanied by any explanation from an appropriate witness in available records, the applicant may face a challenge in satisfying the Tribunal of those matters in question, without that corroborating evidence.
(d)Even in such cases, though, it must be borne in mind that evidence of the applicant is not to be regarded as prima facie unacceptable. Thus, while it will often be prudent to put forward corroborating evidence, applicants are not obliged to call all material witnesses or produce all material documents.
(e)In respect of the relevant criteria, production of certain documents may provide evidence on the issue relating to the relevant criteria. For example:
(i)It is becoming more commonplace for an applicant to provide photographs without explanation as to what it purports to represent; the date when the photograph was taken; who took the photograph; the names of the persons in the photograph and their relationship to the applicant (if that is applicable).
(ii) Bank statements are provided to the Tribunal without an explanation as to why the bank statement is relevant to the issues or in supporting the applicant’s case.
(iii) Text messages including WhatsApp messages are sometimes (as here) where the message is in a language other than English and without translation or a commentary as to the documents relevance to the applicant’s case.
The Tribunal’s approach to evaluating the evidence contained in the documentary information and the oral evidence given at the hearing is based on the following general principles:
·Facts may be found based on oral evidence alone. There is no barrier to a fact being found on the uncorroborated evidence of an applicant or an applicant’s witness. There is no requirement that direct evidence by oral testimony or affidavit may only be accepted if corroborated.
·Self-serving statements should be closely scrutinised, that is, tested thoroughly and received with caution, but subject to the applicant having the opportunity to produce documentary or oral evidence which on balance supports the self-serving statements.
The applicant has provided documents relevant to various periods in the lives of the couple. For example, the Optus telephone account of Donna simply consisting of telephone numbers some of which are highlighted suggesting either texting or calls with the applicant.
The applicant raises the matter of the different faiths. Donna is a Christian. The applicant is a Sikh. The applicant skirts the issue by raising it with mother about her feelings if he should marry a woman of a faith other Sikh. She would be very concerned about that. The applicant provides the Tribunal with an article about which there is no identifying information as to who wrote the article, its relevance to the applicant’s case. In this instance, the article is about the inter religious marriage between Sikh and Muslim families and the social consequences. It does not have relevance to the inter marriage between Sikh and Christian marriages. In any event this couple say that there has been no interaction with their families, except for Donna visiting her family without the applicant and reference to some conversations of Donna with her brother. The applicant was told by Donna that to her brother said for her to divorce the applicant. However, without explanation, Donna has returned to India on a visit with her family and was unaccompanied by the applicant. Both reside in the same city in India. The applicant has neither visited India on his own or with his wife. His reason is that as a casual worker he does not receive annual holiday leave. There is an inconsistency with the applicant’s case.
The statutory declarations and statements did not support a couple in a marriage to the exclusion of all others. They give no insight to the applicant being in an exclusive relationship. Their statements give a brief opinion without any account of how they formed those opinions. Combined with the applicant stating in his evidence before the Tribunal, he did not have friends but colleagues, does not assist his case.
The applicant provided bank statements. Both the applicant and Donna continue to maintain separate bank accounts from which they made respective payments into joint account used by the applicant to pay invoices.
Donna has made the applicant as her sole beneficiary of his superannuation policy. While that must be given some weight, it is a reversible decision. There are means by which it can be made a reversible but there is no evidence of that.
Where the applicant presents documents or other information including photographs, Facetime, SnapChat or WhatsApp or other internet communication applications (including bank statements) which are not complete, in languages other than English or transactions where the significance of which are not with explanation, commentary or the criteria of the issues to which they have been produced, then little weight may be given to that information. Photographs may have little weight depending on the time, date, place and of the image as to whether is provided to support an issue. The applicant may face a challenge in satisfying the Tribunal without explanation or corroborating evidence.
In summary, the Tribunal has carefully considered the whole of the evidence provided by the applicant. Many opportunities have been given to this applicant to provide meaningful and insightful evidence showing that a genuine relationship exists and there is an ongoing commitment to each other and it is continuing. There are no assets or liabilities existing between the couple. Admittedly, the applicant has purchased a motor vehicle which is in his name consistent with his claiming its use in his UberEats business. On the other hand Donna has made the applicant a sole beneficiaries for his superannuation but this is a reversible obligation to which very little weight can be placed on it. More importantly, the applicant has saved a substantial sum which is consistent with the 2 jobs having been undertaken by himself and not taking holidays. However, there has been no statement that these savings are either joint or his contribution towards purchasing a jointly owned home.
The Tribunal is not satisfied that the applicant and Donna are not in a relationship which is genuine to the exclusion of all others.
The Tribunal finds that the applicant and Donna did marry and that the marriage is lawful.
The applicant has consistently not provided commentary or explanation to the documents produced. Without explanation or commentary, the Tribunal does not know the purpose of the documents produced or the criteria, the documents are supporting. Almost in all instances of the production of photographs, do not provide the location, the people in the photograph and when taken. Bank statements provide transactions which by inference do not show the income earned by Donna, though it may be inferred she makes payments to the applicant’s account 7997.
The Tribunal is satisfied that the applicant entered a valid marriage with Donna.
The Tribunal is not satisfied that the applicant is in a genuine relationship and they have a mutual commitment to a shared life as husband and wife to the exclusion of all others.
They have been living together for a long period. Yet the applicant must rely on the oral evidence of Mr Saini a long standing friend who spends a few days and nights in celebrating birthdays. The applicant does not visit Mr Saini and Ms Kaur. After leaving for Adelaide, at best, they follow each other on Facebook, though no documentary evidence is given to support the relationship. While both the applicant and Donna have been living in Toowoomba since 2019, they could not call on workmates, neighbours, acquaintances to provide detailed evidence. The applicant relies on statements and statutory declarations which do not give insight as to the couple and their interaction with each other.
Accordingly, the applicant is not the spouse of the family head and cl 489.311 is not met.
DECISION

The Tribunal affirms the decision not to grant the applicant a Skilled Regional Sponsored (Provisional).
Ian Berry
Member

[2024] AATA 845

26 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice