Singh (Migration)

Singh (Migration) [2019] AATA 2668 (10 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kuldeep Singh
CASE NUMBER:  1702491
HOME AFFAIRS REFERENCE:                CLF2013/306102
MEMBER:Rosa Gagliardi
DATE:10 May 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 10 May 2019 at 4:22pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – sponsor failed to attend hearing – claimed health issues – not substantiated by medical evidence – unable to be contacted by phone – paucity of evidence – pooling of financial resources – living arrangements – marital status with Centrelink – lack of photographs of couple – knowledge of each other’s lives – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; 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 Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 11 December 2013 on the basis of his relationship with his sponsor. 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. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211(2) because there was limited evidence of the parties being in a genuine and continuing spousal relationship as set out in Regulation 1.15A.
The applicant appeared before the Tribunal on 13 November 2018 to give evidence and present arguments. The sponsor did not attend. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant has provided the Tribunal with a copy of the Departmental decision for the purposes of the review.
Below is the applicant’s immigration history:
·The applicant arrived in Australia on 9 May 2009 on a subclass 572 visa;
·He lodged an application for a Skilled subclass 485 visa;
·The Department refused the application for a Skilled subclass 485 visa on
6 September 2012;
·On 4 November 2013 the Migration Review Tribunal affirmed the Department’s decision to refuse the subclass 485 visa;
·On 11 December 2013 the applicant lodged a Partner (sub class820/801) visa application and he was granted a Bridging subclass C visa;
·On 18 August the Tribunal found the applicant met subclause 820.211(2)(d)(ii) of Schedule 2 to the Regulations and the decision was remitted back to the Department for consideration of whether the applicant and the sponsor were in a genuine and continuing spousal relationship.
In remitting the matter to the Department in respect of subclause 820.211(2)(d)(ii) for further assessment, the Tribunal at that time noted:
·That the sponsor did not attend the Tribunal hearing. The applicant told the Tribunal at that time that the sponsor could not attend because her workplace would not permit her to do so, but that the Tribunal would be able to contact the sponsor by phone. The Tribunal tried to contact the sponsor on several occasions but was unable to speak to the sponsor.
·After the hearing the applicant submitted a letter from the sponsor dated 20 May 2015 and the migration agent stated that the Tribunal could check the signature on the letter against the sponsor’s signature on the marriage certificate to confirm the authenticity of the letter. The Tribunal had not raised any issues as to the authenticity of the letter by the sponsor.
·The assertions that the sponsor was unwell were not supported by medical evidence.
·The Tribunal noted the Department’s concerns that the marriage took place only 5 days after the Tribunal affirmed the Department’s decision to affirm the applicant’s skilled visa.
·While the Tribunal at that time did raise concerns about the applicant’s motivation for entering the relationship at the time of assessing whether the applicant met subclause 820.211(2)(d)(ii), it did not make a finding as to whether the parties were in a genuine and continuing spousal relationship.
The hearing held on 13 November 2018 reviewing the Department’s decision regarding whether the parties were/are in a genuine and continuing spousal relationship
The applicant stated that the sponsor was not physically well as she had undergone a lung operation and she was also suffering from depression, and that is why he had not told his sponsor that he was attending the Tribunal today. The Tribunal asked whether the applicant had medical evidence of his wife’s illness. He stated that he had it at home but he did not bring it with him because he was not aware that he should do so. The Tribunal noted that the applicant was represented.
The Tribunal noted that this was an issue as his sponsor had previously not attended a hearing in relation to his application for waiving the Schedule 3 criteria, because he argued she had medical difficulties but there was no medical evidence then either. The Tribunal requested whether the Tribunal could ring the sponsor. He stated that he was not sure whether the applicant would respond but he provided the Tribunal with what he claimed was the sponsor’s telephone number.
The applicant stated that he met his spouse at a party at a friend’s home. The applicant stated that he could not recall when he met the sponsor as it was a long time ago but it was around 2012/2013. They exchanged phone numbers and then they decided to live together and then married. They moved in together after speaking for two months.
They married within a month after moving in together. The applicant stated he could not recall when they married. He did not remember the street in which they lived together in Thomastown, however they later moved to Lalor and then Craigieburn where the applicant stated that they continued to live together. The applicant stated that he had evidence that
they had lived together all this time, however, she had moved in with her parents for the past two months because he was not able to care for her as he was working as a taxi driver.
The Tribunal asked the applicant to submit his previous tax returns to demonstrate whether the sponsor was listed as his spouse. The applicant stated that there had been a problem with his ABN number and that is why he was not able to pay the GST, as someone had used his ABN number falsely. The Tribunal asked that the tax documentation should cover 2016-2017 and 2017-2018. The applicant stated that since the issue with his ABN had been rectified he has been able to lodge a tax return, being in the last one or two years.
The Tribunal noted that he had been married in 2013 and therefore would have tax returns for that period also. He stated that he was not able to pay because of the wrong details but this was corrected in 2016.
The Tribunal asked who was making all the cash deposits into the joint account. The applicant responded that they both did. He stated that his sponsor did not work and had not been working for some time and the Tribunal asked how the sponsor could make cash deposits if she were not working. He responded that he used to go with her sometimes when she was depositing the cash.
The applicant stated that his salary was $4,200 per month. He stated that his salary did not go into the joint account but his individual account. The Tribunal asked whether the joint account had been set up for the purposes of obtaining a visa rather than a reflection of a working account with his sponsor. He stated he did not use the joint account much. The Tribunal noted that if the applicant did not submit all his accounts it would be difficult for the Tribunal to determine whether he and the sponsor did indeed pool their resources.
The Tribunal asked where the sponsor’s Centrelink payments were going as it did not appear they were directed to the joint account. The applicant stated that they were deposited into her individual account. The applicant stated that everyone had an individual account. The Tribunal noted that he claimed that the parties had been married for some 5 years now and it would be expected that they would have a savings plan for their future. The applicant stated that he did have money in his account and they were living together and they used that money as well. He stated that he gave her cash when needed. He was paid in cash mostly in the taxi industry. Initially the applicant stated that he could not recall whether the applicant actually had authorisation to access his personal account and then stated that he had not thought of giving her access.
The Tribunal asked the applicant to discuss the activities he and the sponsor undertook together. He responded that she did the household work and he drove taxis most of the time.
The Tribunal asked what exactly was wrong with the sponsor’s lungs as it appeared to be a serious illness. He stated that she used to smoke a lot but it was not cancer. The Tribunal asked whether the applicant had accompanied the sponsor to her medical appointments to determine the nature of her illness. The applicant responded that her parents have attended medical appointments, not him. The Tribunal noted that the applicant had been married for five years so it was odd that he would not have attended medical appointments with her, especially if her illness was serious. The applicant stated that her parents looked after her very well and he trusted them. Because of his work commitments he was unable to attend medical appointments.
When asked if the applicant went to stay with the sponsor at his parents-in-law’s home with the sponsor, he responded that he did not like staying overnight at anyone’s house. The Tribunal asked when the sponsor might be well enough to return to their marital home and the applicant stated, “after one or two months”. The Tribunal asked about the sponsor’s prognosis and he replied that the doctors have stated that she would be recovering soon. The Tribunal noted that he must know what after-care the sponsor will need and what involvement he would have in that care. The applicant stated that it would be per the doctor’s instructions; whatever he/she said they would do that.
The Tribunal asked whether the applicant used Facebook and he responded he did not. The sponsor did. The Tribunal asked whether his sponsor’s postings would demonstrate that the applicant and the sponsor were portraying themselves to others as being in a genuine and continuing spousal relationship. He responded that she did not put any post like that on Facebook. The Tribunal noted that if the relationship were important to her she would post something about it. The applicant replied that some people don’t like putting things on Facebook.
The Tribunal noted that the Department sent a letter putting to him information from Centrelink indicating that the sponsor’s marital status was listed as “separated” with Centrelink’s records. The applicant stated that it was not important if one’s name was not displayed - they were in a genuine relationship. They had tried to make an appointment over the phone to see Centrelink but they were unsuccessful.
The Tribunal asked about the fact that his sponsor listed on her Centrelink documents that she lived at different addresses to those they provided to the Department. The applicant responded that the sponsor gave her mother’s address details because it was a permanent address and this would ensure their letters would not be displaced. The applicant stated that he did receive his mail at their address without difficulty, however.
The Tribunal asked whether the parties went out together and what other activities they undertook apart from household chores. The applicant stated that they both did not like going out much but sometimes they went to restaurants on Sundays. The Tribunal queried when he had last seen the sponsor at her mother’s place. He initially stated “Tuesday” and when asked if it was the day of the hearing, he stated he had gone last Sunday. Asked what they did, he stated that he did not spend much time there; about 10 minutes. He just went there.
The Tribunal encouraged the applicant to discuss the sponsor’s depressive illness. He asked, “What depression?” The applicant answered that she was concerned and stressed about his visa and that it had been a long time and she was always upset he might go back to India. That was the only reason she was depressed. Asked if he had gone with the sponsor for her to seek treatment, the applicant responded they went to see the doctor. The applicant stated that the doctor just mentioned that she had depression because of something. He confirmed she was prescribed medication, and when asked what the medication was he stated, “a tablet”. Asked who her psychological carer was, the sponsor stated that he was the one who cared for her. The Tribunal had meant by way of a medical practitioner. The Tribunal stated it was a doctor in Craigieburn.
The applicant also confirmed that his sponsor had a 17 year old child. She was staying with her boyfriend. Asked if he provided the sponsor’s daughter with support at all, he stated that if she needed assistance he would give her cash. He stated that he had lost her phone number so the Tribunal could not call her.
The Tribunal asked the applicant how the relationship between him and Ms Klimpton had developed over the years. He said they were having a good relationship and they wanted to continue for a long time.
The Tribunal encouraged the applicant to discuss the support they provided one another and he stated that they lived in a friendly atmosphere and had a good relationship with each other. The applicant stated that they got along very well. The Tribunal asked whether the sponsor’s parents recognised him as their daughter’s husband and he responded, “Yes”. They liked him. The Tribunal asked what they liked about him and he stated that he was a quiet person and was friendly in nature.
The Tribunal asked whether the applicant’s family was happy with his marriage and he responded, “Yes”. Asked if the sponsor communicated with his family overseas, he responded “no” because she did not understand the language. Asked if they had planned to go back to India to present his wife to his family, the sponsor stated that if he got his residency they had planned to go and visit them. The applicant stated that he could not go now because he would not be able to come back.
The Tribunal asked the applicant to provide the Tribunal with insight into what their future plans together were. The applicant stated that for the moment he was only concerned about the visa. Only after he got the visa could they think about the future as it had been a long time now. The Tribunal commented that even though the visa had been a problem they must still have ideas about plans they have together. He responded that they had big plans once he got his residency and then they would buy a big farm as he liked farms. Asked if he had some money to purchase a property he stated that they were saving and they would obtain a loan as well.
The Tribunal asked whether the applicant socialised with the siblings of the sponsor and he responded, not much because most of the time he was at work.
The sponsor did not have anything else to say about the relationship.
The Tribunal then attempted to call the applicant’s sponsor but an automated phone message came on which did not identify the sponsor. Asked if he had the phone numbers of the sponsor’s parents, the applicant responded that he did not. The Tribunal stated that it would have thought that he would have their contact numbers to be able to communicate with them about the condition of the sponsor, for example. The applicant stated that he did visit them. He stated that they lived near his house and he did not like talking much to people. If he felt like it he just went there to visit.
Despite another attempt to call the sponsor the Tribunal could not reach the sponsor. The Tribunal stated that because the sponsor was very sick he must be anxious about her condition so the Tribunal would expect that he would be at least texting her. The applicant stated he did not message her much but he did visit her on his own. He stated she would not use her phone if she was not well. The Tribunal asked prior to her illness did they communicate by text and did he have evidence of that. He responded that he did not. He stated that the messages would be old. The Tribunal stated that it still would like to see any communication between them. He stated he only had older messages but he had deleted them. He did not communicate by Whatsapp with the sponsor.
The applicant stated that the sponsor was in hospital for one or two days but he did not visit her during that period. Asked why, he responded that he was at work. The Tribunal asked whether he could not have passed by in his taxi to see her and he stated her parents were there and they were looking after her and he trusted them.
The Tribunal asked whether the applicant had socialised with the sponsor’s parents more recently and he stated that he did when he visited them at their home.
The Tribunal still had difficulty understanding the condition of the sponsor and asked him to describe her condition. He stated that most of the time she was in bed but she was better than she had been. The Tribunal asked the applicant whether he had spoken to the sponsor’s doctor at all. He stated he had not.
The Tribunal tried to reach the sponsor by phone again. The Tribunal asked the applicant whether he could text the sponsor to let her know the Tribunal was trying to reach her. The applicant responded that she did not use the phone much because of her health.
The Tribunal granted the applicant further time to provide evidence.
Whether the parties are in a spouse or de facto relationship
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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen, Ms Penny Louise Kimpton.
‘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?

If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).
Are the other requirements for a spouse relationship met?
In assessing the financial aspects of the applicant’s relationship with the sponsor, the Tribunal has considered whether the parties have joint ownership of assets, joint liabilities and the extent to which they have pooled their financial resources. Other considerations include whether the parties have any legal obligations towards each other and the daily household sharing of expenses.
At the time of application the parties submitted the following:
·Statement for a joint bank account held by the applicant and the sponsor dated from 29 November 2013 to 31 December 2013; and
·Transactions list for a joint bank account held by the applicant and the sponsor dated from 14 December 2013 to 26 March 2014.
From these transactions, however, it is difficult for the Tribunal to discern the extent of any pooling of financial resources or that the joint account was being used for a joint household. The transactions are limited and there is limited evidence that the parties have their incomes deposited into this account for the purpose of a common household, particularly as the sponsor has not been able to work and is reliant on Centrelink. The Tribunal would have thought that the parties would pool their limited resources to maximise the funds available to both of them. The transactions also reflect individual type purchases as opposed to purchases for a household. The Tribunal queries, therefore, whether this joint bank account was not been established for the sole purpose of the application rather than as a genuine reflection of the parties’ arranging their finances for the purposes of their joint living arrangements.
At the time of decision the parties have submitted the following:
·Transactions for the same joint account from 20 December 2017 - 1 January 2018; and
·Transactions for the same joint account from 1 January 2018 – 30 June 2018.
At hearing the Tribunal raised concerns that the accounts did not appear to reflect that he and the sponsor were pooling their limited resources given the sponsor was unwell and given that he was the earning party of the couple. The transactions did not reflect, for example, that the sponsor’s source of income, (Centrelink payments), were deposited into the joint account, although there appear to be some minor payments to the applicant by Cabcorp reflected in these later transactions.
The Tribunal makes no adverse finding on the basis that the parties might hold individual accounts. Nonetheless, at hearing the Tribunal asked the applicant and sponsor to submit such individual accounts to enable the Tribunal to assess whether the income coming into the household overall was being utilised for the maintenance of their joint household, including the purchase of food and payment of rent.
The Tribunal notes that the individual account for the applicant contains a balance covering the period from October 2018 to November 2018 indicating money from his taxi driving work is deposited into the account and that as at 21 November 2018 the applicant had saved $9,928.61; a not insignificant amount. The Tribunal considers it odd that the applicant stated at hearing that the applicant was not able to access his account and there is little evidence that this account is being used by the applicant to assist support the sponsor, particularly during her time of illness.
The Tribunal also raised concerns at hearing that there appeared to be many cash deposits into the account and the applicant stated that he made the deposits, but when asked about the sponsor’s contribution he stated that she went with him to deposit the cash, raising doubts as to whether the sponsor does make any contribution to the account.
The Tribunal acknowledges that rent is reflected as being paid out of the joint account but given the Tribunal’s disquiet about whether the parties are in a spousal relationship at all, and given that this is not probative evidence that the parties live together at the residence as spouses, the Tribunal places only some weight on these transactions in the applicant’s favour.
Further, the Tribunal notes that the expenditure reflected in the joint account now appears to include some food items and purchases at grocery stores but without further probative evidence that the parties have been pooling their resources, the Tribunal places limited weight on these purchases.
The Tribunal does not place any adverse weight on the fact that the parties have not purchased major assets together, although after five years of marriage the Tribunal would have expected to see some evidence of the parties having legal obligations to one another, no matter how minor these might be.
The sketchy narrative of the parties’ financial arrangements is reflective of the paucity of evidence about the relationship generally.
The Nature of the Household
The Tribunal has taken into account the evidence submitted to support the claims that the parties share, and have shared, a household as spouses over 5 years plus now. The Tribunal has also had regard to joint responsibility for care and support of children, their sharing of living spaces as well as housework.
At the time of application the applicant submitted:
·Vodafone bills addressed to the applicant at a Dalton Road address in Lalor, dated 20 January 2014, 21 February 2014 and 20 March 2014;
·Several letters from Yarra Valley Water addressed to the applicant and sponsor at the same address at Dalton Road, Lalor; and
·Separate letters from Combined Insurance for Personal Insurance (separate accounts) addressed to the applicant and sponsor at the same address at Dalton Road, Lalor.
At the time of application the following was submitted:
·AGL electricity accounts in both names at an address in Exford Court, Craigieburn, Victoria for May 2018, March to May 2018; March to April 2018; February 2018; December 2017 to January 2018; January to February 2018; January to March 2018; November 2017 to January 2018; December 2017; March 2018; May 2018; October 2017; November 2017; July 2017 to September 2017; October 2017 to November 2017; November 2017 to January 2018; December 2017 to 30 January 2018;
·A water bill in the name of “Mr K Smith” emailed to the applicant at the Exford Court, Craigieburn address, dated 6 June 2018;
·Further water bill in the name of “Mr K Smith” emailed to the applicant in respect of the Exford Court, Craigieburn address, due March 2018;
·Several other water bills addressed as above at the Exford Court, Craigieburn address;
·A Vodafone account in the applicant’s name only at the Daltron Road, Lalor address issued on 20 July 2018; and
·Morris Glen Real Estate lease agreement listing the landlord and the applicant as Tenant Number 1 and the sponsor as Tenant Number 2 at Exford Court, Craigieburn for the period frm September 2016 to September 2017.
In terms of the evidence at the time of application, the Department stated that the parties had demonstrated little evidence that they resided as spouses at Dalton Rd, Lalor. Importantly, the sponsor had not addressed this address to Centrelink.
The Department sent the parties a natural justice letter on 1 December 2016 for comment on its findings that:
·The sponsor’s marital status was listed as “separated” with Centrelink;
·The sponsor’s addresses listed with Centrelink were different from the addresses the applicant and sponsor provided to the Department.
The applicant did not respond to the Department but wrote to the Tribunal about these matters in an undated letter. The applicant wrote:
The refusal also mentioned about the inconsistencies found in the Centrelink records where my wife’s marital status was listed as separated with Centrelink; and her addresses listed with Centrelink were different from the addresses which I provided to the Department; please note that addresses were not correctly updated by my agent and I totally relied on his knowledge and understanding in this aspect, I didn’t know that it will be updated wrongly and I would be trapped in this incorrect information presented by him to the Department. I scheduled appointments twice with Centrelink but each time due to my medical situation I couldn’t go to Centrelink.
The Tribunal has had regard to the applicant’s statement at hearing that he and the sponsor made an effort to ring Centrelink about the address details for the records of the sponsor but they were unable to get an interview. The Tribunal does not find the explanations provided plausible and does not accept that if the parties were resolute about ensuring that Centrelink was always kept informed of the marital status of the sponsor and where she was living when, that they would have been able to do so. Indeed, it was the sponsor’s obligation to keep Centrelink informed of her changes in circumstances.
Nor does the Tribunal accept that the migration agent was responsible for advising Centrelink as where he and the sponsor were residing as a couple. This is not a migration matter and is solely the responsibility of the sponsor.
Together with the limited evidence submitted at the time of application of the parties’ living arrangements being consistent with those of two persons in a genuine and continuing spousal relationship, the sponsor’s address details at the time of application as recorded by Centrelink raise questions as to whether at that time the parties were living together as spouses.
In terms of the evidence submitted at the time of review, the Tribunal has viewed the lease arrangements for the Exford Court address, Craigieburn but notes that there is little other evidence by way of rental agreements of the parties having resided together over a five year period, as spouses, at a common address.
The Tribunal has taken into account the AGL electricity accounts in both names for the Craigieburn address. The Tribunal notes that while these seem numerous, in fact some duplicate the same periods and there is overlap. The Tribunal places some weight on these but notes that given the Tribunal has concerns about the evidence representing a realistic life shared by the parties together as spouses, it places limited weight on these. This is particularly so as it is not difficult to have accounts made out in both names without the service provider verifying that indeed two persons live together as spouses. While such evidence in the context of other probative evidence might be persuasive, in the context of limited other evidence of the parties living together on a day to day basis, the AGL accounts do not leave the Tribunal convinced that the evidence is consistent with two persons having lived together for five years as spouses.
At the time of review the applicant stated that the sponsor’s daughter was 17 years of age and had moved out with her boyfriend. Nonetheless, little evidence has been submitted about the years prior and how the applicant undertook his role as a step-father in caring for the sponsor’s child.
Of itself, the Tribunal does not make an adverse finding that the applicant claimed that the sponsor was living with her parents during an illness. Nonetheless, given the limited nature that the sponsor is currently ill (as the Tribunal requested) and given the difficulties highlighted by the Tribunal generally with the evidence, the Tribunal is not satisfied that the parties are living, and have been living together as spouses and has concerns that they are living separately and apart on a permanent basis. This is particularly so as the applicant gave very general, vague and unconvincing responses at hearing about their living arrangements.
Social aspects of the relationship
The Tribunal has had regard to whether the parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.
At the time of application, the parties submitted:
·Several photos of the parties together and with the daughter of the applicant;
·Form 888 statutory declarations completed by Sukhwinder Singh and Shelley Anne Lording; and
·Statutory declarations from Rajvir Singh and Harpinder Singh Gill.
At the time of review the Tribunal was provided with:
·Form 888 statutory declaration from Mr Akash Momi, dated 22 June 2018, declaring that the applicant was a long-standing friend and that he visited the parties frequently and often for dinner on the weekends. Mr Momi, states, among other things, “They are adored by their other friends adn (sic) relatives also, as they can be seen on various social gatherings and religious/culturla (sic) occasions as a very passionate couple” and that the love of the applicant has developed into a successful and genuine marriage. Mr Momi reiterates that he has seen the parties at various parties and other occasions, where their love and affection is recognised by their other friends too and that they love each other with great “zeal and passion”;
·Form 888 from Mr Sukhraj Singh Sandhu reflecting the content of the statutory declaration from Mr Momi, and also dated 22 June 2018, commenting, among other things, “They are adored by their other friends adn (sic) relatives also, as they can be seen on various social gatherings and religious/culturla (sic) occasions as a very passionate couple”. Mr Sandhu also comments that the parties are pillars of strength and support for each other and their love knows no bounds. Mr Sanhu also states that the parties discuss plans for extending their family and see a beautiful future together; and
·Tax returns for the applicant indicating the sponsor as his spouse for the financial years: 2015 – 2016; 2016-2017; and 2017-2018.
The Tribunal has had regard to the third party statements, particularly the more recent ones asserting that the parties attend social gatherings and religious and cultural events, yet there is little supporting evidence to demonstrate that this is the case, for example, photographs in such social settings. Other statements about the parties being recognised by a wide range of friends and family are also supported by limited evidence. At the hearing the Tribunal asked about recognition of the relationship by both families and the applicant asserted that they all supported the relationship, but again there is little to convince the Tribunal that this is the case.
The two most recent Form 888’s declarations are of concern to the Tribunal as it notes that they are very similar to the point where they mirror typos. The Tribunal has questions, therefore, as to whether these statutory declarations may be pro-forma/template declarations that the declarants have signed without providing their own genuine views on the relationship, and whether it is genuine and continuing.
The Tribunal would have expected that the parties would have submitted further evidence of photographic material depicting significant milestones in the lives of the parties and as a family and with others. Photographs would have also assisted the Tribunal gauge the narrative of the development of the relationship over time, which the Tribunal considers is particularly unclear.
The Tribunal notes that the applicant stated at hearing that he and the sponsor did not socialise much. Even if that were the case, the Tribunal queries why the sponsor’s medical carers have provided little evidence that the applicant plays a role in the sponsor’s life as a carer and as her spouse.
The Tribunal has noted the tax returns submitted as requested and the Tribunal places some weight on these in the sense that the applicant appears to have nominated the sponsor as his spouse, although it is unclear as to whether these have actually been lodged.
The nature of the persons’ commitment to one another
The Tribunal has considered the duration of the relationship; the length of time the parties claim they have lived together; the degree of companionship and emotional support they draw from one another; and whether they see the relationship as long-term. The Tribunal is most troubled by this aspect of the evidence.
The Tribunal has taken into account the relationship statements submitted by the parties at the time of application as well as that of the applicant dated 20 May 2015, apologising for not being able to attend the hearing in respect of subclause sub-clause 820.211(2)(d)(ii) but she unable to take the day off work as there was no one to cover her shift. Indeed the sponsor’s input into the application since the letter of 20 May 2015, discussing how supportive the applicant was and that he was “wonderful, kind, honest and everything else you could only wish for…”, is limited. She also went on to state that they were looking forward to starting their own little family.
Even though the Tribunal at hearing requested medical evidence of the sponsor’s condition at the time of hearing held on 13 November 2018, the applicant has submitted little to persuade the Tribunal that the applicant is indeed living with her parents temporarily while she recuperated from an operation.
Since this time, however, the Tribunal has heard very little from the sponsor herself about how the relationship is developing and whether they still plan to have a family together, for example. The sponsor’s silence and absence from hearing in this context raises serious concerns as to whether the sponsor and applicant have ever been in a genuine and continuing spousal relationship and whether the relationship was only entered into for the sole purpose of assisting the applicant gain a migration outcome. Even if the sponsor was unwell at the time of the hearing, it is unclear why even before then, the sponsor has provided little insight into how the relationship has grown and developed over 5 years (plus).
The Tribunal has serious doubts about the applicant’s commitment to the sponsor and the sponsor’s commitment to the applicant. The Tribunal finds it difficult to accept that if the sponsor were unwell, (and the Tribunal has doubts given little medical evidence has been submitted) the applicant could not find the time to attend medical appointments with the sponsor to enable him to learn the precise nature of her illness. While the Tribunal does not place negative weight on the fact that in other circumstances a spouse might move out to stay with her parents because they were both home, the applicant’s limited knowledge of the precise nature of her illness and the vague and general responses he provided at hearing about this matter, belie either disinterest on his behalf or that the sponsor is in fact not ill but that the parties are living separately and apart on a permanent basis.
The Tribunal finds it odd that the applicant could not provide evidence of communication between the parties by way of text messages, for example to demonstrate to the Tribunal the way in which the parties interacted as spouses on a day to day basis. The applicant has submitted his phone records for a period but without knowing who exactly he was ringing this is not probative evidence that even though the applicant claims that his spouse is living away from him temporarily, they continue to keep in contact and support each other and provide one another with companionship on a daily basis.
The Tribunal also finds it troubling that the applicant was unable to speak convincingly at hearing about the role he has played in helping to raise the sponsor’s daughter who until recently has been a young teenager. The Tribunal would have expected that the applicant would have been able to provide evidence of supporting the child emotionally as well as financially as he claimed he did.

The parties claim to have lived together for at least five years but the evidence in this regard is limited and there is little to indicate that the parties see their relationship as long-term in that they are planning future projects together. The Tribunal has taken into account that the applicant asserted at hearing that he intended, only after obtaining the visa, to purchase a farm where he and the applicant would live, however in light of the limited evidence of the parties having long-term plans together, and given the problematic nature of the evidence overall, the Tribunal is not satisfied that the parties have a mutual commitment to a shared life together to the exclusion of others, that the relationship is genuine and continuing and that they live together and not separately and apart on a permanent basis.
On the basis of the limited credible information and for the reasons above, the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.
Therefore the applicant does not meet cl.820.211 and cl.820.221. There is no evidence before the Tribunal that the applicant meets the alternative criteria in that there is no evidence that the sponsor is deceased; that the applicant is the victim of family violence; or that he and the sponsor share custody, access or maintenance obligations in respect of any dependent children.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Rosa Gagliardi
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 2668

10 May 2019

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