Singh (Migration) - [2024] AATA 3872

Singh (Migration) [2024] AATA 3872 (4 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harpreet Singh
REPRESENTATIVE:  Mr Arash Barinder Singh (MARN: 1467301)
CASE NUMBER:  2017612
HOME AFFAIRS REFERENCE(S):          BCC2018/1252869
MEMBER:Tegen Downes
DATE:4 September 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:
·cl 801.221(2)(c) of Schedule 2 to the Regulations

Statement made on 04 September 2024 at 12:02pm
CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – parties are validly married – nature of the household is indicative of a married relationship – couple has been married for 6 years – nature of the commitment is indicative of a married relationship – – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F, 65, 376
Migration Regulations 1994, r 1.15, Schedule 2, cl 801.221
CASES
He v MIBP [2017] FCAFC 206
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 DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 November 2020 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under section 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 15 March 2018 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 801.221(2) of Schedule 2 to the Regulations because there was no information before the delegate that demonstrated that the applicant continued to be the ‘spouse’ of the sponsoring partner.
The applicant appeared before the Tribunal on 12 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor.
The applicant was represented in relation to the review. The material submitted by the representative did not comply with Tribunal’s requirements and expectations set out in the Migration and Refugee Division Practice Direction. This adversely affected the Tribunal’s ability to carry out its functions in accordance with its objects, as set out in section 2A of the Administrative Appeals Tribunal Act 1975 (Cth).
The file provided to the Tribunal by the department includes a certificate and notification regarding the Tribunal’s discretion to disclose certain information under s 376 of the Act. It certifies that disclosure of the material covered by the certificate would be contrary to the public interest because disclosure of this information would reveal internal processes used by the department and includes information given to the department in confidence by the sponsor.
I gave the applicant the opportunity to make submissions on the validity of the certificate and whether I should exercise my discretion to release the information covered by the certificate.
The representative did not make any submissions to the effect that the certificate was not valid. The representative submitted that I should exercise my discretion to disclose the material covered by the certificate to assist the applicant to present information to the Tribunal in a meaningful way, and also because it would assist the administration of justice.
I have considered the certificate and find it is a valid certificate, that it is signed and a public interest reason cited. I have decided not to exercise my discretion to release the information covered by the certificate because I consider that the public interest in maintaining the confidentiality of the information outweighs any prejudice to the applicant.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
ISSUES AND LAW
This review application relates to an application for a partner visa to enable the applicant to remain in Australia as a permanent resident.
The issue in the present case is whether, at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, for the purposes of cl 801.221(2)(c) of Schedule 2 to the Regulations.
‘Spouse’ is defined in s 5F of the Act, which 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, the Tribunal must have regard to all the circumstances of the relationship, including the financial and social aspects of the relationship, the nature of the applicant and sponsor’s household and their commitments to each other, as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
The holding of a provisional or temporary partner visa does not create a presumption that a married or de facto relationship existed. The decision maker on a permanent partner visa application has a duty to make a decision by reference to his or her own assessment of the merits of the application. The decision-maker at the time the permanent visa is granted or refused may have additional and different evidence bearing on the parties’ relationship than a decision maker had at the time the decision to grant the temporary visa was made: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Gupta [2022] FCAFC 51.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is a 33-year-old man from India. He claims to be in a relationship with the sponsor, a 33-year old woman who was born in India and is an Australian Permanent Resident. The sponsor is once divorced with a child from her previous marriage.
The couple claim to have met in August 2016 when the applicant was in Australia on a Student visa.
According to the decision record, the applicant was granted a subclass 820 visa on 24 July 2018 on the basis of his relationship with his sponsor. However, in March 2020, the department received credible information that the relationship between the applicant and the sponsor had broken down.
According to the decision record, in September 2020, in response to a request for information from the department, the applicant claimed that he was trying to reconcile his relationship with the sponsor and this was also confirmed by the sponsor to the department in October 2020. Ultimately, the applicant and the sponsor failed to provide to the department additional information about their claimed reconciliation, which led to the visa being refused.
The couple now claim to have reconciled in March 2021. They claim to be in a genuine and continuing relationship to the present time. I note that they submitted to the Tribunal a Centrelink notification form that refers to the date of reconciliation as 14 March 2022.
In relation to the couple’s separation, there is evidence before the Tribunal that the applicant was charged by the police with [offences] in May [2019]. There is also evidence before the Tribunal that charges against the applicant were withdrawn in January 2021. [Deleted].
The applicant and the sponsor both gave evidence at the hearing about the alleged [offence]. The applicant and the sponsor gave different accounts as to the circumstances surrounding the alleged [offence] and the charges against the applicant, although both referred to the situation as a ‘misunderstanding’ and ‘miscommunication’.
[Details deleted]. I hold serious concerns about the past allegations. However, the sponsor was emphatic that her relationship with the applicant is [genuine], and there is significant documentary evidence before the Tribunal to suggest that the relationship is ongoing. In these circumstances, I consider that the alleged [offence] is relevant to whether the applicant meets Public Interest Criteria 4001, and not the issue to be determined by the Tribunal.
Are the parties validly married?
The couple submitted a marriage certificate issued by the Registry of Births, Deaths and Marriages in Queensland certifying that they were married on 12 January 2018 in Fortitude Valley.
Accordingly, in the absence of any evidence to the contrary, I am satisfied that the parties were married to each other under a marriage that is valid for the purposes of the Act, as required by s 5F(2)(a).
Are the other requirements for a married relationship met?
Financial aspects of the relationship
The couple claim to have two joint assets, being a joint account and joint property in India. The couple submitted a selection of bank statements for the joint account to corroborate their claim, which I accept as true and make a finding accordingly. In relation to the alleged joint property, the couple submitted translated documents that refer to either the applicant or the sponsor holding owning property, however, not both. Accordingly, I do not accept this claim as true.
On the evidence before me, I find that the couple do not have any joint liabilities and that they do not owe any legal obligations to the other party.
The applicant gave oral evidence to the effect that he is the ‘breadwinner’, that he is working cash jobs and does not have work-rights on his visa, and that the sponsor currently cannot work because of a back injury. He gave evidence to the effect that the couple struggle to meet their expenses and that they also receive financial support from the sponsor’s brother. Some corroborating evidence was provided to support the applicant’s claims, although I note that the sponsor’s brother did not attest in his statutory declaration to the financial support that he allegedly provides.
I have carefully reviewed the bank statements for the applicant’s personal account and the joint bank statements. I note that the sponsor’s personal bank statements were not provided to the Tribunal, but evidence was submitted to the Tribunal that the sponsor receives Jobseeker payments of $794.70 per fortnight. I note that the joint bank account statements show that the applicant and the sponsor both contribute to the joint account and that the account is used for some ordinary household expenses such as rent. However, it is not used for other expenses such as payment for insurance, telephone or electricity invoices.
Overall, I consider that the couple have submitted an incomplete picture of the financial aspects of the relationship. I find that the couple have pooled their financial resources to an extent and that they share day-to-day household expenses to an extent. However, I am unable to conclude that they do so in a manner consistent with a genuine couple. I find that the financial aspects of the relationship are not indicative of a married relationship, as defined in the Act.
Nature of the household
The couple claim to live in a rented unit in Taigum. They provided evidence to the Tribunal by way of a written statement as to their daily lives and the division of housework. They also provided evidence of purchases of household items such as furniture and joint utility invoices.
The couple claim to jointly parent the sponsor’s child. They also submitted documentation from the sponsor’s child’s school, statutory declarations and a letter from the child that corroborate their claim.
I accept this evidence and find that the couple live together, that they have established a joint household, that they share joint responsibility for the care and support of the sponsor’s child, and that they share housework in a manner consistent with a genuine relationship. I find that the nature of the household is indicative of a married relationship, as defined in the Act.
Social aspects of the relationship
There is compelling evidence before the Tribunal regarding the social aspects of the relationship: including a detailed joint signed statement from the couple; affidavit from the sponsor’s mother; numerous photographs of the couple with friends and family; travel-related documentation; social media records; and statutory declarations from friends and family.
I find, based on this evidence, that the couple represent themselves to other people as being in a married relationship, that the couple’s family, friends and acquaintances believe the relationship between the couple to be genuine and continuing and that the couple plan and undertake joint social activities. The social aspects of the relationship are consistent with a married relationship, as defined in the Act.
Nature of persons’ commitment to each other
The couple has been married for 6 years and has lived together for approximately 4 years, noting that they lived apart while they were separated. They provided a joint written statement detailing their daily routine and the importance of their relationship to each other. The sponsor also provided a statutory declaration addressing the support that applicant provides to her. I accept this evidence and find that the couple draws companionship and emotional support from each other commensurate with a genuine relationship and that they see the relationship as long term. I find that the nature of the commitment is indicative of a married relationship, as defined in the Act.
Conclusion
Having regard to the findings set out above, I am satisfied that, at the time of my decision, the couple have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship is genuine and continuing and that the couple live together or do not live separately and apart on a permanent basis for the purposes of s 5F(2)(b) to (d) of the Act.
Accordingly, I am satisfied that the requirements of s 5F(2) are met and that, at the time of this decision, the couple are in a married relationship, as defined in the Act. Therefore, the applicant meets cl 801.221(2)(c) of Schedule 2 to the Regulations.
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 801 visa.
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
Tegen Downes
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.15A Spouse
(1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.
(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets; and
(ii)any joint liabilities; and
(iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv)whether one person in the relationship owes any legal obligation in respect of the other; and
(v)the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i)any joint responsibility for the care and support of children; and
(ii)the living arrangements of the persons; and
(iii)any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i)whether the persons represent themselves to other people as being married to each other; and
(ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii)any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i)the duration of the relationship; and
(ii)the length of time during which the persons have lived together; and
(iii)the degree of companionship and emotional support that the persons draw from each other; and
(iv)whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).