Singh (Migration) - [2018] AATA 4263

Singh (Migration) [2018] AATA 4263 (26 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Talwinder Singh
CASE NUMBER:  1730748
DIBP REFERENCE(S):  CLF2013/232068
MEMBER:Kate Millar
DATE:26 September 2018
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:
·cl.820.211of Schedule 2 to the Regulations

STATEMENT MADE ON 26 SEPTEMBER 2018 AT 9:00AM
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Federal Court remittal – sponsored relationship – sponsorship form in another name – expenses in joint account – money transfers – utilities account names – knowledge of each other’s financial – duration of relationship – decision under review remitted

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Singh is a citizen of India. He came to Australia in 2009 as a dependent on his then wife’s subclass 572 visa. He met Ms Nilson through friends in August 2012, and after he divorced on 17 November 2012, married Ms Nilson on 4 March 2013.
Mr Singh applied for a Partner (Temporary) (Class UK) visa on 15 August 2013, and his visa application was refused by a delegate of the Minister for Immigration because the delegate was not satisfied Mr Singh was the spouse of Ms Nilson as defined by the Migration Act 1958 (the Act) and the Migration Regulations 1994 (the Regulations).
Mr Singh applied for a review of this decision, and on 4 August 2015, this Tribunal (differently constituted) affirmed the decision, also finding Mr Singh was not the spouse of Ms Nilson as defined.
On appeal to the Federal Circuit Court, Mr Sigh’s application was again affirmed, however this application was remitted for reconsideration by Justice Charlesworth of the Federal Court on the basis that the Tribunal had misconstrued the consideration of the degree of companionship and emotional support that Mr Singh and Ms Nilson draw from each other. Justice Charlesworth fond the observation of the Tribunal about Mr Singh’s lack of interest in the church Ms Nilson attended without asking Ms Nilson how this affected her was an error of law.
Mr Singh appeared before the Tribunal on 11 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Nilson. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mr Singh met Ms Nilson at a shopping centre where they were introduced by mutual friends. They exchanged telephone numbers and started chatting and meeting up. They started living together in February 2013 and married on 4 March 2013.
Mr Singh applied for the visa on 15 August 2013 on the basis of his relationship with Ms Nilson. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations), and Mr Singh must meet the primary in Part 820 to be granted the visa.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because at the time of the application, Mr Singh and Ms Nilson were not spouses as defined by the Act or Regulations. It followed that, if they did not meet this requirement at the time of the application, they also did not meet the time of decision requirements in cl.820.221.
The issue in the present case is whether Mr Singh and Ms Nilson were spouses at the time of the application.
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.
‘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). These are specified in detail below.
Are the parties validly married?
The parties married on 4 March 2013 in the Birth, Deaths and Marriages Registration Office in Adelaide, and 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).
The r.1.15A requirements
According to the Full Court of the Federal Court, the Tribunal must make findings on each of the maters specified in r.1.15A(3).[1]
[1] He & Ors v Minister for Immigration & Anor [2016] FCCA 2908
The financial aspects of the relationship are:
(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.
Mr Singh pays the rent and bills. His pay goes into his personal account and he transfers money to Ms Nilson. After the hearing Ms Nilson provided her personal account in the name of Kylie Smith showing transfers to her account from Mr Singh, and a Centrelink statement again in the name of Kylie Smith showing her as being partnered for Centrelink purposes. Ms Nilson’s address on the Centrelink statement is a post office box. On the original sponsorship form for Mr Singh, Ms Nilson states she is also known as Kylie Smith
At the time of the application, the parties had a lease in joint names and provided receipts for payment of rent as well as a bond lodgement dated 8 March 2013. Ms Nilson had a health insurance policy which names Mr Singh as the other adult beneficiary of this policy.
The rent, shopping and utilities are paid from the joint account. Bank account statements for the joint account from July 2014 to July 2015 show payment of utilities from this account.
Mr Singh has his own company, Cheema Clean Solutions Pty Ltd, and money from his cleaning work is deposited to his business account. He then transfers funds into his personal account. He also transfers money to Ms Nilson’s account and to the joint account. Mr Singh failed to provide his personal bank account statements as requested by the Tribunal, however transfers to the joint account and Ms Nilson’s personal account could be seen in the statements provided.
The internet account is in Ms Nilson’s name at the address where they live, and they provided a health insurance statement for each of them listing the same current address.
Mr Singh’s personal tax return lists Ms Nilson as his spouse.
The parties do not have joint assets. Their current lease is in the name of Surjit Singh, and Mr Singh and Ms Nilson have been added as “tenant” in a handwritten annotation at the bottom of the extension of the lease. This was not very convincing as evidence of a current joint lease. There were and are no joint assets or liabilities. There is no evidence of owing a legal obligation in respect of the other.
The lack of knowledge of each other’s financial as noted in the previous decision of this Tribunal remains evident at the time of this decision as Ms Nilson was not aware that Mr Singh currently operates a business or is the director of a company, or that he had a partner in this business.
Nevertheless they have provided evidence of a joint lease at the time of application and joint account statements showing payment of utilities commencing 8 months after the application. The joint account shows the payment of bills from this account and I am satisfied they pool financial resources and share day to day household expenses.
The nature of the household requires consideration of:
(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.
Ms Nilson has an adult daughter, however they do not have any joint responsibility for the care and support of children.
On being asked to explain previous evidence that they do not share a bedroom, Mr Singh said they share a bedroom but as he works at night they are not often there at the same time as he sleeps during the day. The parties both gave evidence they have lived together and shared a bedroom since February 2013. There is no evidence before me to the contrary. Their evidence is supported by a statutory declaration from Sumit Auklam who states he has lived with them for several years.
Both parties state that Ms Nilson undertakes household chores as Mr Singh works.
While they do not have any joint responsibility for children at the time of the application they lived together and divided the responsibility for housework, with Ms Nilson being responsible for household chores.
The social aspects of the relationship are:
(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.
Ms Nilson has not met Mr Singh’s family in person and has not been to India. Mr Singh says that because of her physical problems she cannot travel.
Both Mr Singh and Ms Nilson were able to identify the others’ family members and gave consistent evidence on when they had last seen members of Ms Nilson’s family. They consistently named the partner of Ms Nilson’s daughter.
Statutory declarations from a number of people have been provided to the Department, to the Tribunal at the first application of this matter and again on this hearing of the matter. All of these declarations support Mr Singh and Ms Nilson as being in a married relationship.
After the hearing Mr Singh provided as requested a statutory declaration from Ms Nilson’s younger sister stating that she met Mr Singh when she was 17 not long after she moved out. The statutory declaration curiously has a scanned signature, but is witnessed by a Justice of the Peace. The information in this declaration is consistent with information in the application that Mr Singh and Ms Nilson did not live together for a period because Ms Nilson’s sister and daughter were living with her.
Mr Singh and Ms Nilson said they do not see other people often. There are some photographs of them with others at or before the time of the application. There is no substantive basis on which to make findings on which they plan and undertake joint social activities.
On the basis of the information before me at the time of application the parties represented themselves to others as married and the opinion of friends and acquaintances is that they are a married couple.
The nature of the commitment comprises:
(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.
Mr Singh and Ms Nilson have been in a relationship from October 2012, and at the time of the application this was a little less than one year. They had lived together from February 2013, a period of six months before the application.
Mr Singh provided detail at the hearing on Ms Nilson’s medical conditions and drug problems, however it is difficult to know how this relates to his knowledge of her conditions at the time of the application or is subsequently acquired knowledge.
Mr Singh has been out of Australia twice in 2017 and a number of times in 2016, and both parties said this was because his mother was sick. Ms Nilson could not recall how many times he had been out of Australia in 2016 and said she has a really bad memory.
A matter of concern at the time of this decision is evidence of what the parties did at Christmas 2017. Mr Singh was out of Australia at this time. On being asked what they did for Christmas last year, Ms Nilson said they went to the Watermark Hotel with her daughter, her daughter’s partner, her daughter’s friend, her little sister and her boyfriend and Sumit. She then said this might have been two days after Christmas, but on Christmas day she and Mr Singh spent half the day with her daughter. This cannot be reconciled with Mr Singh being out of Australia on 25 December 2017.
As the visa application is now approximately five years ago, the relationship can be seen as long term. Mr Singh and Ms Nilson say they want to have children and buy a house but cannot make decisions while the visa is in doubt. They see the relationship as long term.
On the basis of the information before me, the parties had a mutual commitment to a shared life to the exclusion of all other at the time of the application, the relationship was genuine and continuing and they lived together.
While there are areas of concern at the time of this decision, it is not necessary to make a determination at the time of this decision. The delegate found Mr Singh did not meet the time of decision requirement at cl.820.221because the delegate was not satisfied Mr Singh met the requirement to be the spouse of Ms Nilson at the time of application. As I have found he was the spouse of Ms Nilson at the time of application, it is more appropriate for the department to consider the time of decision requirements further and to consider whether any further investigation is required.
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.
Therefore the applicant meets cl.820.211(2)(a) of Schedule 2 of the Regulations. He is sponsored by Ms Neilson and meets cl.820.211(c). He held a substantive subclass 572 visa at the time of the application and meets cl.821.22(d). It follows he meets the requirements in cl.820.211 of Schedule 2 of the Regulations.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:
·cl.820.211(2)(a) of Schedule 2 to the Regulations
Kate Millar
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).