Singh (Migration)

Singh (Migration) [2019] AATA 5382 (24 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Inderdeep Singh
CASE NUMBER:  1809392
HOME AFFAIRS REFERENCE(S):         BCC2016/692904
MEMBER:Steven Griffiths
DATE:24 July 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211(2) of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations

Statement made on 24 July 2019 at 2:05pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – genuine and continuing relationship – pooled financial resources – shared household expenses and housework – joint responsibility for care of children – parties represent themselves to others as married to each other – joint social activities – companionship and emotional support – mental health issues – positive influence – mutual commitment to shared life as married couple to exclusion of others – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206
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 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant, Mr. Inderdeep Singh, applied for the visa on 18 February 2016 on the basis of his relationship with his sponsor, Ms. Shelley Carin Wilson. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied that the visa applicant was the spouse, as defined in s.5F of the Act, of the sponsor.
The applicant appeared before the Tribunal on 18 July 2019 to give evidence and respond to questions. The Tribunal also received oral evidence from the sponsor, the mother of the sponsor, the son of the sponsor and the daughter of the sponsor.
The applicant was represented by his registered migration agent, who attended the hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Immigration file and Tribunal file, including additional information provided to the Tribunal and the evidence from the Tribunal hearing.
ISSUE
The issue in the present case is whether visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.
BACKGROUND OF THE EVIDENCE
Mr Singh was born at Ferozepur, India. His father is deceased, with his mother, born 1952, and two sisters, born 1977 and 1981, all living in India. He married Sandeep Kaur on 5/10/08 and divorced 31/7/15, with no children from the marriage. He applied for a spouse student visa in 2008 and was rejected. He arrived in Australia on 12/9/09.
Ms. Wilson was born in Australia. Her parents, born in 1947 and 1951, are divorced and her two sisters, born 1975 & 1981, all live in Australia. Her father re-married and she has a step-mother, born 1950, and one step-sister and two step-brothers. She married Peter Otterman on 5/5/01, living in South Africa from this time before separating in 2013 and divorcing on 31/7/15. She has two 2 children, a son born 1/7/02 and daughter born 1/9/03. She and her children have lived in Australia since 2013.
INFORMATION TO THE TRIBUNAL
Since the Department made a decision the sponsor has provided further information to the Tribunal including:-
Support letter by treating Doctor of sponsor
Confirmation by treating Doctor of fertility treatment, 29/3/18
OPTUS records from 1/10/17 to 1/11/17
Vodaphone records from 5/10/17 to 1/12/17
RAA car insurance for 2 years of 5/12/16 to 4/12/18, which details sponsor and visa applicant as drivers
Visa applicant superannuation with sponsor as beneficiary
Sponsor superannuation with visa applicant as beneficiary
Tax returns for parties, showing the other as spouse, for 15/16 to 17/18 years
Holiday booking of visa applicant and sponsor and children for 13/10 to16/10/16 and 4 photos
Holiday booking of visa applicant and sponsor and children for 145/16 and 8 photos
Visa applicant and sponsor membership of community centre
19 photos of the visa applicant and sponsor with family and friends
Children school registration with visa applicant detailed as emergency contact
Origin Energy gas & electricity accounts for 10/18 detailing visa applicant and sponsor
SA Water accounts for rented property detailing visa applicant and sponsor for 10/15 to 8/18
ANZ account visa applicant 20/4/18 to 22/8/18
Bank of Melbourne account visa applicant 22/4/16 to 20/2/17
NAB sponsor account 20/9/18 to 31/10/18
Bank SA joint account 3/9/15 to 2/3/18
Joint name home rental agreement
Bank SA joint account 3/3/18 to 1/3/19
16 photos with family and friends
Bank of Melbourne visa applicant account 22/2/18 to 21/2/19
Is the sponsor an Australian citizen?
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal accepts that the sponsor is an Australian citizen by birth.
Whether the parties are in a spouse or de facto relationship
‘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 parties’ 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?
At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with an Australian Marriage Certificate as evidence of their marriage on 24 October 2015.
The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered include:-
(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 expense
The Tribunal accepts that at the time of the visa application and this decision, no real estate or other major assets are held by the parties.
The Tribunal accepts the documented and oral evidence of purchases from the joint bank account of furniture for the home and determines this to represent, at the time of decision, the pooling of financial resources, especially in relation to major financial commitments.
The Tribunal accepts that the time of the visa application and this decision, no joint liabilities are held by the parties.
The Tribunal accepts that at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.
The visa applicant has been a truck driver since September 2017, having previously worked as a Chef.
The sponsor has worked during the relationship, on two occasions for periods of up to a month, while for much of 2016 she worked as a software tester.
The Tribunal accepts the documented and oral evidence of the parties of the bank accounts held, with the individual accounts used by the parties to share the cost of bills and household expenses and able to be accessed by the other, with the joint account used for the savings of the parties. The Tribunal determines these bank accounts and transactions to represent, at the time of applicant and this decision, the pooling of financial resources, especially in relation to major financial commitments and the sharing of day-to-day household expenses.
Nature of the household aspects that must be considered include:-
(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
The Tribunal accepts the sponsor has her two children living with her on a full-time basis. The Tribunal accepts the oral evidence of the son and daughter of the sponsor that they fully support the visa applicant being part of their family, see him as a father figure and respect the involvement he has had and will have in their lives. The Tribunal determines, at the time of applicant and this decision, that the parties have full-time joint responsibility for care and support of children.
The Tribunal determines, from the documented, photographic and oral evidence of the parties, that they have lived together since September 2015.
The Tribunal accepts the photographic and oral evidence of the parties on the roles each undertakes in the household and determines at the time of application and this decision, the parties share the responsibility for housework.
Social aspects of the relationship that must be considered include:-
(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
The Tribunal accepts the photographic and oral evidence, confirmed independently by the parties and attending witnesses, that at the time of application and this decision the parties represent themselves to all other people as being married.
The Tribunal accepts the photographic and oral evidence, confirmed by the parties independently, of the names of the family and friends of the visa applicant and sponsor who attended their wedding and determines this to express support for the relationship and marriage and the planning and undertaking of joint social activities at the time of application and this decision.
The Tribunal accepts the photographic, oral evidence and written statements of friends and acquaintances that at the time of application and this decision they support the parties’ relationship and marriage.
The Tribunal accepts the photographic, oral evidence and written statements of family on the exceptionally strong commitment the extended family members have, and the complete acceptance of the visa applicant as part of the family and determines this to represent, at the time of applicant and this decision, support for the relationship and marriage.
The Tribunal determines, at the time of application and this decision, the parties are together every day and have a complete knowledge of what the other does.
Nature of the commitment to each other areas that must be considered include:-
(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.
The Tribunal accepts the evidence that the parties met initially on 19 April 2014, committed to each other on 19 April 2015, commenced living together from September 2015 and married on 24 October 2015.
The Tribunal determines that the parties have lived together since September 2015, being approximately 1400 days.
The Tribunal accepts the photographic and oral evidence of the closeness of the parties’ relationship and determines, at the time of application and this decision, the parties provide a significant level of companionship and emotional support to each other.
The Tribunal accepts the documented and oral evidence of the parties seeking medical assistance on efforts to have a baby.
The Tribunal accepts the oral evidence of the parties that they have found their partners in life and determines, at the time of application and this decision, have had and continue to have an ongoing commitment to each other and see the relationship as being long-term.
Any other circumstances of the relationship
The Tribunal accepts the documented and oral evidence of the mental health issues the sponsor has dealt with, and in particular the correspondence from her treating doctor of the positive impact the visa applicant makes to her life.
The Tribunal accepts the oral evidence from the children of the sponsor, who are aged 17 and 15, of the many positives the visa applicant has brought to their mother and their lives, that they see and treat him as a father figure and that they wish him to remain in Australia with them forever.
The Tribunal accepts the oral evidence from the mother of the sponsor on the positive influence the visa applicant has had to the family and provides her full support to him being able to live in Australia and continue as a member of her family.
The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.
The Tribunal accepts that the parties have been in a committed relationship since April 2015, married in October 2015, are seeking to have a child together and have lived together since prior to the visa application.
On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and the time of this decision. The Tribunal is further satisfied the sponsor was not prohibited by subclause (2B) from being a sponsoring partner.
The applicant therefore meets cl.820.211(2)(a). The Tribunal accepts the applicant was sponsored and therefore meets cl.820.211(2)(c), and as he was the holder of a substantive visa at the time of application, cl.820.211(2)(d) does not apply. Accordingly, the applicant meets cl.820.211(2). The applicant continues to meet these requirement at the time of decision and therefore meets cl.820.221(1).
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 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211(2) of Schedule 2 to the Regulations
·cl.820.221(1) of Schedule 2 to the Regulations
Steven Griffiths
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).

[2019] AATA 5382

24 July 2019

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Immigration

Administrative Law

Statutory Interpretation

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