Singh (Migration)

[2018] AATA 5925

Singh (Migration) [2018] AATA 5925 (20 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Jaswinder Singh

VISA APPLICANTS:  Ms Jasjeet Kaur
Ms Arshpreet Kaur Sidhu
Mr Gurkirat Singh

CASE NUMBER:  1618808

DIBP REFERENCE(S):  BCC2014/3582280

MEMBER:Michael Cooke

DATE:20 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 20 December 2018 at 4:41pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – sponsor financially supports the visa applicant – living in separate countries for past 10 years – widely recognised relationship – frequent travel to visit wife and children in India  ­– strong relationship with step-children – concerns with information in Department file – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 October 2016 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 30 December 2014 on the basis of their relationship with their sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 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 the visa applicant did not satisfy cl.309.211 because the applicant did not meet the definition of spouse.

4. The applicant submitted a significant amount of additional information pursuant to reg.1.15A(3) and the delegate’s decision record findings.

5. The review applicant appeared before the Tribunal on 5 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from other supporting persons who gave evidence.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the parties are in a genuine and continuing relationship.

   The Hearing

9. The Tribunal addressed the

   SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

   Whether the parties are in a spouse or de facto relationship

10. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

11. ‘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 visa applicant’s and review applicant’s 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?

12. 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?

    Findings and reasons about each matter in r.1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.15A(2)

13. The applicant has addressed the issues pursuant to reg.1.15A(3) in a comprehensive submission as follows:

    ·Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

14. The sponsor works as personal care worker in three aged care facilities on a full-time basis. He is a comfortable financial position and has recently purchased his own home, where he intends for his family to be able to live when they arrive in Australia. However, the sponsor works long hours (nearly 62 hours per week) to able to afford to support himself as well as his wife and her family in India. The visa applicant is not working as she is financially supported by the sponsor and has her family. He is financially supporting the applicant, her two children, her mother and previously her brother who moved overseas. The sponsor usually sends around $800AUD per month, but on occasion this could be more, depending on the needs of the family.

15. The sponsor has provided bank statements from 2015 to 2018 evidencing transfers to his wife's account. He believes he sent the evidence of funds transfers between 2011 — 2014 to his previous migration agent, and these were not provided to the Department with the application. He does not have copies of these documents, and hasn't been able to obtain them from his previous agent. The sponsor has also provided a lay-buy receipt for a diamond ring he recently purchased for his wife in 2016. He has since purchased this ring and given it to his wife.

16. A significant amount of the sponsor’s income is spent on travel to India to visit his wife. Further evidence of his financial commitment to his wife is the significant amount of money he has spent lodging two partner visa applications, two visitor visa applications, an AAT appeal plus legal professional fees.

17. The Tribunal is satisfied following receipt of additional information that the financial relationship between the parties is a spousal one.

    ·Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

18. The Tribunal observes that the parties are living in separate countries for the past 10 years of their relationship. At present, their domestic life involves speaking with one another over the phone regularly (as evidenced by attached phone records) and the sponsor’s annual trips to India. While he is in India, he stays with the applicant and her children at his family home. The sponsor has recently purchased a home at [Address 1], Victoria. He hopes that they will live together in this new home.

19. The Tribunal is satisfied that the parties conduct a spousal household whenever able to be together.

    ·Social aspects of the relationship – including whether 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.

20. The parties’ relationship is widely recognised and supported by their respective friends and family and affidavits attesting to the genuineness of the couple's relationship have been provided along with a significant number of photos. Oral evidence confirming their relationship has been given as well by witness at the hearing.

21. The Tribunal is satisfied that the social aspects of the relationship indicate it is a spousal relationship.

    ·Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

22. The parties insist that they have the required mutual commitment found in a spousal relationship. The sponsor has travelled to India on the following occasions to be with his wife and her children: November 2008 - February 2009, 27 December 2011 - 19 March 2012, 13 May 2013 - 12 June 2013, 7 August 2014 — 7 September 2014, 16 February 2016 - 7 March 2016, 27 February 2017 - 11 April 2017.

23. The Tribunal is satisfied that this amount of travel demonstrates a significant commitment. and a strong relationship - despite 10 years living apart due to visa and geographical issues. The sponsor insists that he has a strong relationship with his step-children, calling them his children and, they in turn, call him their Dad.

24. The Tribunal is convinced that only two people sharing the commitment the parties have had could have withstood some of the opprobrium their marriage has unleashed. The parties have provided immense emotional support under the trying circumstances. Their commitment is mutual and spousal in nature.

    ·Any other circumstances of the relationship.

25. The Tribunal conducted “in-depth” questioning of the sponsor in view of the adverse findings and observations found on the Department file. This questioning involved all about his family situation, the circumstances of his relationship with his wife and their life together in India. Witnesses also gave oral evidence about meeting them at gatherings in India, contemporaneously, and identified themselves and the parties from photographic evidence presented to the Tribunal.

26. The Tribunal has concerns with the conduct of the ‘home visits’ and the lack of formal contemporary evidence of the visits on file. One occasion in particular struck the Tribunal as very odd. The sponsor said that despite the fact he was in India contemporaneously with his wife - the Department officers in India or elsewhere failed to contact him by telephone when he was, effectively, “Johnny -on-the-spot” and could have answered any question they asked. Instead they went off to visit his mother-in-law’s house where his wife lives normally and made some radical conclusions about the bona fides of the case. Similarly it appears that village gossip was relied upon as a source of information that was erroneous or the persons were not cognizant with the true situation of the sponsor who has lived in Australia for 10 years. The fact that the sponsor has broken his back working for 10 years to establish a home for his family in Australia similarly indicates he was hardly doing it for his Australian-based former wife who had subsequently remarried.

27. The Tribunal has considered the full circumstances of the case and makes the following findings on these matters against s.5F(2)(b)-(d). The parties have a mutual commitment to a shared life to the exclusion of others; a genuine and continuing relationship; and they live together or not separately and apart on a permanent basis.

28. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

29. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

30. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

31. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Michael Cooke
    Senior Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (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).