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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 4263
Decision Date: 26 September 2018

CaseChat Overview and Summary

This matter concerned an application by Mr Singh for a Partner (Temporary) (Class UK) visa, Subclass 820. The primary issue before the Tribunal was whether Mr Singh and Ms Nilson were spouses at the time of the visa application, as required by cl.820.211(2)(a) of the Migration Regulations 1994. The delegate had refused the visa on the basis that this criterion was not met, which consequently meant the time of decision requirements in cl.820.221 were also not satisfied.

The Tribunal was required to determine whether Mr Singh and Ms Nilson were in a married relationship for the purposes of the Migration Act 1958. Section 5F of the Act defines a spouse as two persons who are married to each other, have a mutual commitment to a shared life as a married couple to the exclusion of all others, have a genuine and continuing relationship, and live together or do not live separately and apart on a permanent basis. In assessing these elements, regard must be had to all circumstances of the relationship, including financial and social aspects, the nature of the household, and commitment to each other, as detailed in r.1.15A(3) of the Regulations.

The Tribunal found that Mr Singh and Ms Nilson were validly married on 4 March 2013, satisfying s.5F(2)(a). However, the Tribunal noted that it must consider all the circumstances of the relationship as set out in r.1.15A(3), which includes financial aspects, the nature of the household, social aspects, and the nature of their commitment to each other. The Tribunal concluded that the matter should be remitted for reconsideration by the Minister, with a direction that Mr Singh meets the criteria in cl.820.211(2)(a) of Schedule 2 to the Regulations.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 RegulationsKate MillarMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).

Ratio Decidendi

Legal Principle Established

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 RegulationsKate MillarMemberATTACHMENT - Extract from Migration Regulations 19941.15A 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).