Singh (Migration)

[2019] AATA 3256

Singh (Migration) [2019] AATA 3256 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Davinder Singh

CASE NUMBER:  1619485

HOME AFFAIRS REFERENCE(S):          CLF2012/212597

MEMBER:John Billings

DATE:3 April 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 03 April 2019 at 6:12pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) – Subclass 820 (Partner) – genuine spousal relationship – conflicting evidence – unsuccessful visa applications – decision under review affirmed   

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65, 359(2), 359A, 360(3), 376
Migration Regulations 1994 (Cth), Schedule 2 cls 820.211, 820.221, r 1.15A(3), Public Interest Criterion (PIC) 4020, Schedule 3

CASES

He v MIBP [2017] FCAFC 206
MIBP v Singh [2016] FCAFC 183

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made on 28 December 2016 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).

2. The applicant, Mr Singh, applied for the visa on 22 October 2012 on the basis of his relationship with his sponsor, Ms Catherine Naparulla Wilson, who is a 33 year old Australian citizen by birth. At the time Mr Singh applied, 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.

3. The delegate refused to grant the visa on the basis that Mr Singh did not satisfy cl.820.211.  The delegate was satisfied that Mr Singh and Ms Wilson were married but the delegate was not satisfied that Mr Singh and Ms Wilson were in a genuine spousal relationship.  The delegate considered there was insufficient evidence in support of the application.  The delegate also referred to certain adverse information:  especially information provided by Ms Wilson to Centrelink: see further below.

4. Mr Singh applied for review on 18 November 2016.

5. Mr Singh was represented by various migration agents at the primary stage.  He was not represented in the review. 

6. There was no hearing.  On 11 October 2018 the Tribunal wrote to Mr Singh pursuant to s.359(2) of the Act inviting him to provide information in relation to the circumstances of the relationship.  The deadline was 25 October 2018.  There was no response on or before that date.  In the circumstances, s.359C applies and pursuant to s.360(3) Mr Singh is not entitled to appear before the Tribunal.  The Tribunal has no power to permit him to appear. 

7. The Tribunal previously wrote to Mr Singh on 28 May 2018 inviting him to provide information in relation to the circumstances of the relationship.  That invitation was not made pursuant to s.359(2).  There was no response to that invitation.

8. On 16 November 2018 the Tribunal wrote the Mr Singh in relation to a non-disclosure certificate under s.376 of the Act.  The Tribunal provided a copy of the certificate and invited submissions as to its validity.  In the same letter the Tribunal gave particulars of information under s.359A of the Act.  At Mr Singh’s request the Tribunal granted an extension of time for him to comment or respond.  Mr Singh sent an email to the Tribunal in response in late December.  He did not address the question of the validity of the non-disclosure certificate but he did provide some further evidence in support of the application.

9. Mr Singh is a 32 year old national of India.  He first arrived in Australia on 15 August 2005 holding an Indian passport and a Class TU Student visa.  He has departed and re-entered Australia a number of times.  Mr Singh has been granted further substantive visas and bridging visas since he first arrived.  His most recent substantive visa, a Student visa, ceased on 11 May 2011.  Since then he has been granted a Bridging C visa with a “no work” condition. 

10. In 2007 Mr Singh applied for a Class DD Skilled (Independent Overseas Student) visa.  That was refused in mid-2008.  On 14 November 2008 the MRT (Migration Review Tribunal) upheld the decision to refuse the visa.  That was on the grounds that Mr Singh did not have “vocational English”: MRT reference 0804440.  In May 2011, not long before his last Student visa expired, Mr Singh applied for a Class UC Subclass 457 Business (Long Stay) visa.  The visa was refused in February 2012.  That was on grounds including that Mr Singh did not meet PIC (Public Interest Criterion) 4020 because he provided a bogus document to the Minister, being a counterfeit IELTS test report form.  Mr Singh applied to the MRT for review but withdrew the application in September 2013: MRT reference 1202403.   

11. At the time of application Mr Singh’s occupation was cook and Ms Wilson was unemployed.    

12. According to the visa application and material in support, Mr Singh and Ms Wilson met in Alice Springs on 28 November 2011.  Mr Singh went to Alice Springs with his mother who was visiting Australia and wanted to see his brother and sister there.  He met Ms Wilson at the casino.  He said it was love at first sight.  Mr Singh and Ms Wilson exchanged contact details and began seeing each other almost every day.  Mr Singh became aware that Ms Wilson had some health problems and gave her support.  Mr Singh and Ms Wilson made a commitment to each other on 18 April 2012.  They were married in Alice Springs on 21 May 2012.  The visa application states that Mr Singh moved from Melbourne to Alice Springs in February 2012.  The visa application and sponsorship state that neither Mr Singh nor Ms Wilson had previously been married or in a de facto relationship.  Mr Singh declared that he did not have any children.  There was no information to indicate that Ms Wilson had children.  It was stated that Mr Singh’s parents were in India and that his brother and sister were in Australia.  It was stated that Ms Wilson’s parents and five siblings were in Australia. 

13. The Department’s file includes a copy of the relevant pages of Mr Singh’s passport; the marriage certificate; wedding and other photographs; jewellery and electrical appliance receipts; bank statements; utilities accounts; itineraries; general correspondence; hospital records concerning Ms Wilson; statements and statutory declarations in support of the application; and written submissions.  Some of the statements and statutory declarations were made in response to invitations by the Department to comment on or respond to adverse information.   

14. The material submitted to the Tribunal – submitted in response to the s.359A invitation – includes a photocopy of three photographs (two of which had been submitted to the Department and one of which appeared at least to have been taken at the same time as photos submitted to the Department); 2012 and 2013 bank documents; 2013 and 2014 utilities accounts; a 2012 itinerary; a Centrelink letter addressed to Ms Wilson, dated 8 August 2013; and two statutory declarations made in December 2018.      

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The President’s Direction entitled Conducting Migration and Refugee Reviews includes the following, at paragraph 8.2: “As a general rule, where the Minister … or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those matters.”  It is evident from material on the Department’s file that at the primary stage consideration was given to whether Mr Singh meets the requirements of PIC 4020(2) and Schedule 3.  However, the Tribunal has restricted the review to the time of application criteria that were addressed in the primary decision – regarding the genuineness of the relationship - but the Tribunal has also considered the related time of decision criteria.  For the reasons that follow, the Tribunal is not satisfied that, at the time of application, Mr Singh was the spouse of Ms Wilson, or that, at the time of decision, Mr Singh is the spouse of Ms Wilson. 

17. The Tribunal has mentioned the certificate under s s.376 of the Act.  As to the Tribunal’s obligations with regard to non-disclosure certificates see generally MIBP v Singh [2016] FCAFC 183. There has been no submission that the certificate is invalid. The Tribunal considers that the certificate is valid. Notwithstanding that there is a valid certificate the Tribunal issued an invitation to Mr Singh pursuant to s.359A of the Act to comment on or respond to adverse information. Relevantly, the Tribunal gave the following particulars of the information. The Tribunal explained the relevance of that to the review.

    ·In May 2011 Mr Singh lodged an application for a Temporary Business Entry (Class UC) visa in which Ms Manpreet Kaur was named as his spouse.  The Class UC visa was refused on the grounds that he provided a bogus document, being a counterfeit IELTS test result, to the Minister.  He applied to the MRT for review but he withdrew the application

    ·Mr Singh and his sponsor informed Centrelink that they had been married from 26 May 2014 whereas Mr Singh told the Department they were married on 21 May 2012.  Mr Singh claimed to have been living with Ms Wilson in Melbourne.  Ms Wilson listed the address as an address that she shared with him from August to September 2014 before she changed her address back to an address in the Northern Territory

    ·Ms Wilson had a Parenting Payment from Centrelink as at July 2013 whereas the visa application does not disclose any children or include a claim that Mr Singh has had any involvement in the life of any child of the sponsor

    ·In March 2013 and February 2016 Ms Manpreet Kaur entered Australia.  On each occasion she gave information to immigration officials in which she named “Davinder” as her emergency contact.  In February 2016 she included Mr Singh’s email address and she gave as her intended address an address (in Melbourne) that Mr Singh had told the Department was his address

18. The most relevant part Mr Singh’s response to the s.359A invitation was a statutory declaration by Ms Wilson dated 24 December 2018.  Among other things, Ms Wilson declared that Mr Singh had been married before and that “her (sic) previous marriage” was in trouble.  Ms Wilson gave Mr Singh “moral support” because she fell in love with him.  She declared: “I do know that even after their divorce they are still friends”.  Ms Wilson’s declaration otherwise refers generally to her marriage to Mr Singh and aspects of their relationship that the Tribunal will refer to below.    

19. Mr Singh’s response to the s.359A invitation also included the documents from 2012-2014 mentioned earlier.  There was also a statutory declaration by Mr Singh’s brother, Mr Gurwinder Singh (“Gurwinder”), dated 24 December 2018. Gurwinder declared that he had known Ms Wilson for six and a half years.  His declaration refers to the marriage and wedding celebration and to the parties living together in Alice Springs before moving to Melbourne.  Gurwinder declared that he resides in the Northern Territory.  He declared that Ms Wilson was “currently” staying in Alice Springs while Mr Singh was in Melbourne, because members of her family were sick and, due to financial hardship, they were unable to rent and live together.  Gurwinder declared that Mr Singh and Ms Wilson love each other and have a strong relationship as a married couple.

20. The Centrelink letter dated 8 August 2013, addressed to Ms Wilson, specifies an address in Melbourne.  The letter - headed “Healthy Start for School Initiative” - is especially notable because it names a child who was said to be turning four in the 2013-2014 financial year.  (The child therefore was likely born between July 2009 and June 2010.  June 2010 was approximately 18 months before Mr Singh claims to have met Ms Wilson).   

21. The hospital records submitted to the Department identify the source as Alice Springs Hospital.  They include 2012 and 2015 Discharge Summaries.  As the delegate noted, the documents record Ms Wilson’s mother (and not Mr Singh) as her next of kin and record a Northern Territory address for Ms Wilson.  The 2012 document is not significant because it is dated in February which was two months before the parties claim to have made a commitment to each other and three months before they were married.  The 2015 documents are significant. By then Mr Singh and Ms Wilson had been married for about three years.  Even if it were claimed that, through circumstances beyond their control, they were living separately at the time, and that this was temporarily only, that would not satisfactorily explain why Ms Wilson’s mother rather than Mr Singh was identified as next of kin.

22. The Tribunal will discuss other evidence when considering the financial and other aspects of the relationship. 

23. The problem in this case is not merely that there is insufficient evidence in support of the application.  The problem is also that there are serious anomalies in the case that have not been satisfactorily explained.  In some instances there has not been any explanation put forward at all.  

24. At this point, the Tribunal sets outs its general conclusions concerning the claimed relationship.  The Tribunal is not satisfied that the relationship is genuine.  That is for these reasons in particular.  Mr Singh has unsuccessfully pursued various means to remain in Australia, indicating a strong motivation to remain.  He has not denied that he engaged in fraud in relation to a previous visa application.  That casts doubt on the veracity of his claims.  The claims about his relationship with Ms Wilson are that the relationship developed quickly and that the decision to marry more or less coincided with a visa refusal on PIC 4020 grounds.  That too casts doubt on his claims, but there are more serious problems to mention.  Although no previous relationships were disclosed in the visa application and sponsorship, Mr Singh has not denied that he was previously married.  On the contrary, Ms Wilson’s December 2018 statutory declaration mentions that he was married and declares that he divorced.  And although there is evidence that Ms Wilson has a child, no child was mentioned until Mr Singh provided the 2013 Centrelink letter to the Tribunal.  (There was a separate 2013 Centrelink letter addressed to Ms Wilson that was submitted to the Department.  That letter referred to a parenting payment without expressly mentioning any child).  Mr Singh has not denied that Ms Kaur named “Davinder” as her emergency contact when she entered Australia in 2013.  He has not denied that Ms Kaur included his email address and she gave as her intended address an address (in Melbourne) that Mr Singh had told the Department was his address when she entered Australia in 2016.  If Mr Singh meant to deal with these points by submitting Ms Wilson’s declaration (with the statement that she knows that he and his ex-wife remain friends), that would not satisfactorily address those points, in the Tribunal’s view.  Added to these concerns is the evidence that in 2015 Ms Wilson’s mother, rather than Mr Singh, was named in hospital records as Ms Wilson’s next of kin and that Ms Wilson’s address in the 2015 hospital discharge summary is a Northern Territory address whereas there are 2015 utilities accounts at least that are addressed to Mr Singh and Ms Wilson in Melbourne.  

25. Mr Singh did provide to the Tribunal any comment on or response to the information about advice to Centrelink that Ms Wilson was again residing in the Northern Territory from September 2014.  On the other hand he essentially dealt with the point in an undated letter to the Department.  (In September 2016 the Department invited him to comment on information that Centrelink was informed that he and Ms Wilson separated in August 2015 and that she was living in Alice Springs and he was living in Melbourne).  In his letter Mr Singh said that he and Ms Wilson had had a few arguments.  They were struggling financially because he did not have “work rights” and she could not work because of her medical condition.  He said that Ms Wilson “updated” her status to “single” to increase her Centrelink payments.  He went on to say that he and Ms Wilson had “rectified” their “issues” and intended to amend the information given to Centrelink.  He said that the separation was temporary.  Ms Wilson had all her relatives in Alice Springs and she preferred to live with them because in Aboriginal culture it was common to do that.  They kept in touch by phone and they travelled to visit each other.  At no stage was he single, Mr Singh said.  He said that he and Ms Wilson were seeking Government Housing so they could live together in Alice Springs. 

26. Even before the Tribunal issued the s.359A invitation Mr Singh had ample opportunity to provide further, and up to date, evidence in support of the application.  When he finally responded to the s.359A invitation he submitted hardly any documentary evidence that was new or significant.  The main items of evidence he submitted at that time were the statutory declarations by Gurwinder and Ms Wilson that the Tribunal has mentioned and will say more about below.    

27. None of the material submitted in response to the s.359A invitation, and none of the evidence submitted before that, including Mr Singh’s undated letter, satisfactorily addresses the considerable body of adverse information there is.  The documentary evidence such as the bank statements and utilities accounts, and the statutory declarations, all of which are to be discussed further below, is insufficient to overcome these problems. 

    Whether the parties are in a spouse or de facto relationship

28. Clauses 820.211 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 Mr Singh claims to be the spouse of Ms Wilson who is an Australian citizen.

29. ‘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?

30. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  There is evidence, now including Ms Wilson’s December 2018 statutory declaration, to indicate that at least Mr Singh has been married before.  There is evidence too that Ms Wilson has a child.  Neither of them declared to the Department that they had been married or in a de facto relationship before.  It is of further concern that the marriage certificate indicates their “Conjugal Status” to be “Never Validly Married.”  Ms Wilson’s statutory declaration mentions that Mr Singh was divorced, but no divorce certificate has been submitted. 

1. Whether it is the case that it was in 2014 that Mr Singh or Ms Wilson notified Centrelink that they were married, or that they notified Centrelink that they were married in 2014 – that is, that the marriage took place in 2014 (or at least that the relationship commenced that year) – that would be a matter of further concern.  Still, the actual marriage certificate is in evidence, indicating the actual marriage date. 

2. In summary, the Tribunal has reservations about the validity of the marriage.  However, despite those reservations, on the basis of the marriage certificate, the Tribunal finds 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 spousal relationship met?

   Financial aspects of the relationship

3. There is no evidence that Mr Singh and Ms Wilson jointly own any real estate or other major assets. The receipts submitted to the Department relate to some items of jewellery (rings purchased on the day of the marriage), a fridge and a television (purchased in 2014) only.  There is no evidence that Mr Singh and Ms Wilson have any joint liabilities.  There is no evidence that one of them owes any legal obligation in respect of the other.

4. There is evidence of joint bank accounts – one opened in 2012 and one opened in 2013.  The evidence that could be relevant to the extent to which, if any, the parties have pooled financial resources, especially in relation to major financial commitments, or shared day-to‑day household expenses, is more or less limited to a statement for one of those accounts, for the period November to December 2014, and a statement for the other for the period from January to June 2015.  The first statement shows there are some Centrelink payments into the account but for the most part the source of deposits is not identified.  Payments out of the account are irregular.  The second statement shows there are more regular Centrelink payments.  Payments out also appear to be more regular.  (Incidentally, the information shows the making of numerous purchases in Alice Springs and some purchases in Melbourne during this period).  Due to the narrow date ranges of these statements, and the limited information they provide, the Tribunal is not satisfied that they demonstrate any or any significant pooling of financial resources or sharing of day-to‑day household expenses.

5. There was a Centrelink Income Management and Basics Card statement for Ms Wilson, for the period June to August 2013, submitted to the Tribunal.  That shows numerous taxi and shopping expenses incurred - in Alice Springs.  The document does not demonstrate any pooling of financial resources or sharing of day-to‑day household expenses.

6. In her December 2018 statutory declaration, concerning the financial aspects of the relationship, Ms Wilson merely declared this: “Financially together we are fine.  I live on [C]entrelink payments since my husband doesn’t have work rights”. 

7. The Tribunal places very limited weight on this consideration.  

   Nature of the household

8. The Tribunal has discussed the state of the evidence with regard to children.  That is merely that, despite there being no express mention of any children until relatively recently, there is now evidence, being the 2013 Centrelink letter that was submitted to the Tribunal, that Ms Wilson gave birth to a child over a year before she and Mr Singh met.  There are no claims, and no evidence to support any claims, that Mr Singh and Ms Wilson ever had joint responsibility for the care and support of that child or any other children.  Ms Wilson declared in December 2018 that she and Mr Singh were trying to have a baby, but in the same month Mr Singh’s brother Gurwinder declared that whereas she had been living in Alice Springs Mr Singh was in Melbourne.   There is other evidence to indicate they have been living apart for years.  

9. In relation to the parties’ living arrangements, the evidence is limited and it is contradictory.  One of the itineraries that were submitted relates to a flight the parties took from the Northern Territory to Melbourne in October 2012.  There is another for August 2014.  On the other hand, the Tribunal has mentioned information that Ms Wilson’s address advised to Centrelink from September 2014 was a Northern Territory address.  This contrasts with 2015 utilities accounts at least that show a Melbourne address. 

10. The documents submitted to the Department include utilities accounts addressed to Mr Singh and Ms Wilson in Melbourne that are dated both before and after September 2014.  They are of limited probative value.  The statutory declaration by Mr Singh’s brother Gurwinder states that Ms Wilson has been living in Alice Springs while Mr Singh has been in Melbourne but it does not state when she returned to Alice Springs.  In her December 2018 statutory declaration Ms Wilson does not say anything about that.   

11. So far as any sharing of the responsibility for housework is concerned, the evidence is very limited. Ms Wilson declared in December 2018 that Mr Singh cooks for her but, as noted, there is other evidence to indicate that she has been living in Alice Springs whereas Mr Singh has been living in Melbourne. 

12. It has not been claimed that Mr Singh has had to stay in Melbourne for reasons to do with employment.  That claim could not reasonably be made for, as Ms Wilson acknowledged in her declaration, Mr Singh does not have permission to work.

13. The Tribunal places very limited weight on this consideration.  

    Social aspects of the relationship

14. There are wedding and other photographs.  Many of the photographs simply show Mr Singh and Ms Wilson together, but there are others that show them with other people, including some that are said to include Mr Singh’s parents and other family members, and some that are said to include Ms Wilson’s family. 

15. There are several statutory declarations by other persons.  The Tribunal has already referred to Gurwinder’s statutory declaration.  There are also statutory declarations by Ms Wilson’s mother and friends of Mr Singh.  Many of these declarations really do no more than assert that the relationship is genuine.  One declaration made by Ms Wilson’s mother in 2012 is in that category.  Another declaration by her, made in 2015, mentions that Ms Wilson went to Melbourne to live with Mr Singh and that they both visited the family in the Northern Territory.  What is stated in that declaration appears to be in conflict with the information given to Centrelink about where Ms Wilson was living after September 2014.  Other declarations, such as one by Mr Kulwinder Singh and one by Mr Harmandeep Singh (who was a witness to the marriage), refer to joint social activities though they do so in only fairly general terms.    

16. Having regard to the whole of the evidence, which includes evidence about Ms Wilson’s next of kin as recorded in 2015, the Tribunal is not satisfied that Mr Singh and Ms Wilson represent themselves to other people as being married to each other.  The Tribunal has had regard to the declared opinion of Mr Singh and Ms Wilson’s friends and acquaintances about the nature of the relationship, but for reasons stated the Tribunal considers that to have little probative value.  The Tribunal is not satisfied that Mr Singh and Ms Wilson have planned and undertaken joint social activities on the basis of genuinely being a married couple. 

17. The Tribunal places very limited weight on this consideration.  

    Nature of persons’ commitment to each other

18. It is claimed that the relationship has been in existence for approximately seven years.  For reasons already given, while the Tribunal is satisfied that the parties were married in 2012, the Tribunal is not satisfied that they have been in a genuine spousal relationship.

19. The evidence concerning whether and for how long the parties have lived together is contradictory.  There is evidence such as utilities accounts and correspondence – including from the Australian Electoral Commission in early 2015, addressed to Ms Wilson in Melbourne – that has been submitted in support of claims that they lived together in Melbourne for a period of time.  That evidence is contradicted by information reportedly given to Centrelink.  Mr Singh has not denied that Centrelink was given that information.  Gurwinder’s recent statutory declaration indicates that for some unspecified period of time Mr Singh and Ms Wilson have not been living together.  If it is so that Ms Wilson needed to return to the Northern Territory because some of her relatives there were unwell, that would not explain why Mr Singh (who is acknowledged not to have permission to work) would not be living there with her. 

20. The Tribunal now considers the degree of companionship and emotional support that the persons draw from each other, and whether they whether they see the relationship as a long‑term one.  To some extent the parties have addressed that in statutory declarations and written statements.  In addressing Schedule 3 criteria at the primary stage, emphasis was given in a written statement by Mr Singh and a statutory declaration by Ms Wilson, both made in September 2015, to Ms Wilson’s physical health.  In her December 2018 declaration, Ms Wilson referred to her and Mr Singh’s mental health.  She also dwelt on the physical aspects of the relationship.  Ms Wilson more or less asserted that she and Mr Singh are emotionally close to each other.  In the declaration made in 2015 she said that her and Mr Singh’s “long term future plans” include “making [their] home” and “extending [their] family”.  The Tribunal has noted that – however long it has been that Mr Singh and Ms Wilson have been living separately – their separation has not been satisfactorily explained.  Further, they have not provided any evidence to support claims that they have maintained the relationship in the meantime, whether by telephone, visits or in some other way.

21. The Tribunal has mentioned Manpreet Kaur, the person said to be Mr Singh’s ex-wife.   Mr Singh has not commented on or responded to information that – in particular - in February 2016 Ms Kaur gave as her intended address an address (in Melbourne) that Mr Singh had told the Department was his address.  There is only the broad statement in Ms Wilson’s declaration that even after the divorce Mr Singh and Ms Kaur “are still friends”.   The Tribunal is not required to make any finding as to whether Mr Singh and Ms Kaur are in a relationship and are living together.  The evidence concerning Ms Kaur is, however, a further reason for the Tribunal not being satisfied that Mr Singh and Ms Wilson have been and are in a genuine spousal relationship. 

22. Having regard to the above matters, the Tribunal is not satisfied that Mr Singh and Ms Wilson have had a mutual commitment to a shared life as a married couple to the exclusion of all others or that the relationship between them has been genuine and continuing.  Further, the Tribunal is not satisfied that the parties have lived together or that they have not lived separately and apart on a permanent basis. 

23. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made or at the time of this decision.

24. Therefore Mr Singh does not meet cl.820.211(2)(a) or cl.820.221.

25. There are no claims, and there is no evidence that would support any claims, that Mr Singh meets any of the alternative criteria for the visa. 

26. For the reasons above, Mr Singh does not satisfy the criteria for the grant of the visa.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    John Billings
    Senior 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).