SINGH (Migration)

SINGH (Migration) [2019] AATA 2144 (18 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Zorawar Singh
CASE NUMBER:  1716222
HOME AFFAIRS REFERENCE(S):           CLF2013/39959
MEMBER:Helena Claringbold
DATE:18 March 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 18 March 2019 at 12:22pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – Federal Circuit Court remittal – genuine spousal relationship – paucity of evidence – adverse information – sponsor’s relationship status – relationship ceased – not lived together or been in contact for the last one and a half years – 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).
On 25 February 2013, Mr Zorawar Singh, the applicant applied for a Partner (Temporary) (Class UK) visa. The application was based on his spousal relationship with Ms Choinelle Blaine Geaney also known as Choi, the sponsor.
On 3 September 2014, a delegate of the Minister for Immigration and Border Protection to refused to grant the visa. The refusal was based on the applicant not meeting the criterion of Schedule 3001 of Schedule 3 to the Migration Regulations 1994 (the Regulations). As a result the applicant did not meet cl.820.211(2)(d)(ii) of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).
On 25 June 2015, the Migration Review Tribunal (MRT) affirmed the delegate’s decision on the basis that the applicant did not meet the Schedule 3 criteria. On 22 April 2016, the Federal Circuit Court remitted the matter to the MRT for consideration.
On 31 October 2016, the Administrative Appeals Tribunal (AAT) differently constituted affirmed the delegate’s decision on the basis of not being satisfied that the applicant and the sponsor were genuine spousal partners. On 24 July 2017, the Federal Circuit Court remitted the matter to the AAT for consideration. This is a review of the delegate’s decision.
On 13 September 2018, the Tribunal wrote to the applicant and invited him to a Tribunal hearing on 5 November 2018. This Tribunal hearing was rescheduled. On 27 February 2019, the applicant appeared before the Tribunal to give evidence and present arguments. He provided the Tribunal with a copy of the delegate’s decision record. 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection’s case file and the Tribunal’s case files and the evidence at the Tribunal hearing.
ISSUE
The Tribunal will consider whether the applicant is the spouse of the sponsor as defined in s.5F of the Act. It may then go onto consider the Schedule 3 matter.
BACKGROUND ON THE EVIDENCE
The applicant was born in 1985 in Daroli Kalan Jalandhar, India. At the time of application he declared the following: his parents and two siblings lived in India. In 2008 he married Ms Kaswinder Kaur. On 3 December 2008, he was granted a student visa as a dependent of Ms Kaur. On 15 June 2012, the applicant’s marriage to Ms Kaur ended in divorce. As detailed in the delegate’s decision record, on 3 December 2008, the applicant entered Australia as a dependent of a student visa holder and the last substantive visa held by the applicant ceased on 15 March 2011.
The sponsor was born in 1985 in Australia. She is an Australian citizen. Her mother lives in Australia. No other family members were declared for the sponsor.
In July 2012, the parties met. On 1 February 2013, the parties married under the Waheguru Simran Society Inc rites.
The Tribunal Hearing
The applicant was told that a non-disclosure certificate issued under s.375A of the Act is on the Department’s file requiring the Tribunal to do all things necessary to ensure that the document or information which is subject to the certificate is not disclosed to any other person. The reason stated in the s.375A certificate for the non-disclosure is that to disclose would be contrary to public interest because folios 110-113 contain sensitive legal advice. The Tribunal does not consider the certificate to be valid. The applicant was invited to comment on the validity of the certificate. The information the subject of the certificate relates to a previous notification to the applicant and is not relevant to the issues relating to this review. The applicant was told that the Tribunal places no weight on the information which is the subject of the certificate. The applicant did not comment on the validity of the certificate.
Is the applicant the spouse of an eligible resident?
The Tribunal is satisfied that the sponsor, at the time of visa application and at the time of decision, was and is an Australian citizen.
Are the parties validly married?
At the time the visa application was made, the applicant provided evidence of her marriage to the sponsor. 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 parties in a spousal 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 husband and wife 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).
CLAIMS AND FINDINGS
Are the other requirements for a spousal relationship met?
In forming an opinion as to 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 applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3) of the Regulations, which is extracted in the attachment to this decision.
On 13 September 2018, the Tribunal wrote to the applicant and invited him to a Tribunal hearing on 5 November 2018. The applicant was advised of the following: in assessing his matter the Tribunal must consider either regulation 1.09A (de facto relationship) or regulation 1.15A (spouse relationship) of the Migration Regulations. Regulations 1.09A and Regulation 1.15A provide that the Tribunal considers all the circumstances of the parties’ relationship including the financial aspects of the relationship; the nature of the household; the social aspects of the relationship and the nature of the parties’ commitment to each other. The applicant was provided with a guide to the type of information that may be provided and told that it was not a definitive list. The applicant was asked to provide copies of bank statements for all accounts held in joint names and in the name of the applicant and the sponsor for a period of 1 December 2017 to 26 October 2018. At the Tribunal hearing on the 27 February 2019, the Tribunal asked the applicant why he had not provided this information. He told the Tribunal that the parties have not lived together for about a year and a half. He then queried the invitation sent to the applicant and said he had not received it. The Tribunal told the applicant that the invitation had been sent to his migration agent. It asked the applicant whether he continued to be represented by his migration agent and he responded in the affirmative. The Tribunal is satisfied that the invitation of 13 September 2018 was emailed to the applicant’s migration agent and as such is taken to have been sent to the applicant.
About the financial aspects of the parties’ relationship, there is no information before the Tribunal that the parties had any joint ownership of real estate or other major assets or joint liabilities or any legal obligation in respect of the other, other than as detailed below. In June 2014, the applicant’s migration agent stated that the applicant shared the expenses for the household and groceries with the sponsor and the parties have a joint bank account and household insurance. However the applicant was the only one working and he looked after household expenses. A home insurance document has been provided for the parties with an insurance coverage from 21 November 2013 to 21 November 2014 for a Davis Road, Padstow address. Bank statements provided in joint names for February to May 2013 and November to December 2013 and December 2013 to January 2014, do not provide any insight into how the parties pool their financial matters. At the Tribunal hearing of June 2015, the applicant stated that he was working in a juice factory and the sponsor was not working. But when the parties began living together the sponsor was receiving unemployment benefits. He stated that he sometimes puts money into the joint bank account and he had two other bank accounts and the sponsor also had a personal bank account. At the Tribunal hearing of 27 February 2019, the applicant stated the following: he closed the parties’ joint bank account about two years ago. When the parties lived together, he was the person who primarily paid household expenses and the sponsor did not make any financial contribution in any way. When the sponsor worked she would contributed to buying groceries. The parties didn’t purchase anything together.
·At the Tribunal hearing of 27 February 2019, the Tribunal put information to the applicant under the relevant provision. The information is as follows: at the Tribunal hearing of June 2015, the applicant stated he didn’t know if the sponsor received a pension or whether the sponsor had advised Centrelink about the parties’ relationship. He claimed that the parties’ incomes were deposited into their individual bank accounts.
·The applicant responded and stated that at that time the parties had a joint bank account however the sponsor used to take drugs and the applicant didn’t deposit into the bank account.
The Tribunal accepts that the parties had a joint bank account and had household insurance for the time period detailed above. There is no corroboratory evidence before the Tribunal about the parties’ financial matters since November 2014. The Tribunal does not accept that the parties pool their finances now or since November 2014.
In respect to the nature of the parties’ household, at the time of application the sponsor declared to be living in a two bedroom dwelling with three occupants. In June 2014, the applicant’s migration agent stated that the applicant shared the household responsibilities with the sponsor. There is no information before the Tribunal that the parties had any joint responsibility for the care and support of children. There is little evidence about the living arrangements. In a witness statement a friend of the applicant stated that he lived with the parties and other than the migration agent’s statement that the parties shared household responsibilities, there is no independent evidence about how the parties lived or took responsibility for housework. At the Tribunal hearing of 27 February 2019, the applicant stated the following: the parties lived together at five different addresses and when they lived together they shared housework. However, the parties have not lived together for about one and a half years. On the evidence, the Tribunal does not accept that the parties live together or share housework.
Regarding the social aspects of the parties’ relationship, in June 2014, the applicant’s migration agent stated that the parties represent themselves as husband and wife and are recognised as a married couple. A friend of the sponsor wrote in February 2013, that the parties are in love and married and their relationship is continuing. At the same time a relative of the applicant stated that the parties moved in together in December 2012. He attended the parties’ wedding and lived with the parties and he believes that the parties’ relationship is genuine and continuing. At the Tribunal hearing of 27 February 2019, the applicant stated the following: that the parties shopped together and went out to eat and visited a fun park. The Tribunal accepts that the parties shopped together, went out to eat and visited a fun park. It accepts that the parties presented as a married couple and that authors of third party statements thought the parties’ relationship was genuine and that they represented themselves to others as being married to each other. However the Tribunal does not accept that the parties plan or undertake joint social activities together because there is no impartial information about this aspect of the parties’ relationship.
Concerning the parties’ commitment, the information before the Tribunal is that the parties began living together in October or November 2012 and married in 1 February 2013. The parties previously stated that they intended to have children and buy their own house. At the Tribunal hearing of June 2015, the applicant stated that the parties were in a genuine relationship and had plans to travel overseas and have children together. The Tribunal accepts that the parties married in February 2013. Notwithstanding the witness statements, there is little objective evidence about the parties living together or about how the parties supported each other. The evidence before the Tribunal is that the sponsor did not attend any of the three Tribunal hearings to provide evidence about the parties’ relationship. Other evidence is that the sponsor was in a relationship with a person called Mr Lukez since 2015 and on the applicant’s evidence the parties have not lived together for about one and a half years.
At the Tribunal hearing on the 27 February 2019, the Tribunal put information to the applicant under the relevant provision. The information is as follows:
·The Tribunal differently constituted requested that, the applicant arrange for the sponsor to attend the Tribunal hearings on the 25 June 2015 and on the 28 October 2016. The sponsor did not attend either of the Tribunal hearings and was not available to give evidence.
·At the Tribunal hearing of October 2016, information was put to the applicant that the sponsor’s Facebook profile indicates that the sponsor was in a relationship with a Mr Lukez. On Mr Lukez’s Facebook profile he declared that he was ‘in a relationship with Ms Choinelle Geaney since 2015’. The sponsor’s Facebook profile records the sponsor as living in Queensland.
·At the Tribunal hearing of October 2016, the applicant stated that the sponsor used to go to Queensland all the time but had told him that the man on the Facebook profile was just a friend. He stated that the sponsor had been back in Queensland for two months and he had no idea when she would return. The applicant was vague about how long the sponsor had been in Queensland and about where she was receiving drug counselling. The applicant stated that he no idea when the sponsor would return to Sydney. He stated that if the sponsor returned and stated that she would never cheat again, the relationship may continue.
·At the Tribunal hearing on 27 February 2019, the applicant responded and stated the following: the sponsor didn’t attend the Tribunal hearing on 25 June 2015 because her mother was seriously ill. The sponsor didn’t attend the Tribunal hearing of 28 October 2016 because she was in a rehabilitation centre. When the sponsor returned after seeing her mother he asked her about Mr Lukez and the Facebook profile. The sponsor told him that Mr Lukez was a friend. The applicant didn’t understand why the sponsor was portrayed as being in a relationship with Mr Lukez. The sponsor promised that ‘she would not continue [to] do these things’.
At the Tribunal hearing on 27 February 2019, the Tribunal asked the applicant why the sponsor was not in attendance. The applicant told the Tribunal that the sponsor went for rehabilitation about one and a half years ago and he can’t find her. He told the Tribunal that after the sponsor went to rehabilitation the sponsor’s phone number was not working. He didn’t call the rehabilitation facility because he didn’t know which one the sponsor went to. He will try to find the sponsor and see if she wants to live with him and the parties will try to start a future together. The sponsor has not been in contact with the applicant but maybe she has tried to contact him on Facebook, which he has not been on.
On the evidence above the parties have not lived together or been in contact for the last one and a half years. Therefore, the Tribunal does not accept that the parties provide each other with companionship and emotional support or that they see their relationship as long term.
The applicant provided some evidence to the Department at the time of application in February 2013 and during the visa processing until June 2014. There is no documentary or independent evidence before the Tribunal since, June 2014, concerning the financial aspects of the parties’ relationship, the nature of any household, any social aspects of their relationship, or the nature of their commitment to each other.
Regardless of when the parties separated, the evidence from the applicant is that the parties’ have not lived together for about one and a half years and he does not know where the sponsor is or how to contact her. Due to the lack of evidence of an ongoing and current partner relationship, the Tribunal is satisfied that the parties’ relationship ceased. Ultimately, because of the lack of corroborative evidence concerning the parties’ spousal relationship relating to the financial aspects of their relationship, the nature of any household, any social aspects of their relationship, or the nature of their commitment to each other since June 2014 and having considered the evidence individually and as a whole, the Tribunal is not satisfied that at the time of decision the parties are in a spousal relationship.
Even though the applicant stated that he would try to contact the sponsor to ascertain the sponsor’s intention with regard to the parties’ relationship, there is no evidence from the sponsor that she continues or intends to continue in a spousal relationship with the applicant. The evidence is that the sponsor left the parties’ home about one and a half years ago and that the applicant does not know where she is. Due to the lack of evidence to the contrary, the Tribunal is satisfied that the parties’ relationship has broken down therefore the applicant is no longer the spouse of his sponsor and is unable to satisfy cl.820.221(1) of Schedule 2 to the Regulations.
The Tribunal, on the evidence is not satisfied that at the time of this decision, the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that the relationship is genuine and continuing and that the couple live together, or do not live separately and apart on a permanent basis.
As the Tribunal has determined that the applicant is not the spouse of the sponsor, it has not gone on to consider the Schedule 3 criteria.

There is no evidence before the Tribunal that the applicant satisfies the requirements of any of the alternative subclauses.
Given these findings the Tribunal is not satisfied that at the time of this decision the parties were in a spousal relationship.
Therefore the applicant does not meet cl.820.221 of Schedule 2 to the Regulations.
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.
Helena Claringbold
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 2144

18 March 2019

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction