Singh (Migration)

[2018] AATA 1909

Singh (Migration) [2018] AATA 1909 (10 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Narinder Singh

CASE NUMBER:  1703630

DIBP REFERENCE(S):  CLF2013/120517

MEMBER:Ann Duffield

DATE AND TIME OF

ORAL DECISION AND REASONS:          10 May 2018 at 13:58 pm (QLD time)

DATE OF WRITTEN RECORD:                10 May 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl.801.221 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 10 May 2018 at 2:44pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Spousal relationship – Reside together – Joint household – Duration relationship – Financial aspects of relationship – Decision under review remitted

LEGISLATION
Migration Regulations 1994, rr 1.09A, 2.03A, Schedule 2 cl 801.221

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made by a delegate of the Minister for Immigration on 13 February 2017 to refuse to grant the visa applicant a Partner (Residence) (Class BS) Subclass 801 visa under the Migration Act 1958 (the Act).

2.    At the hearing ON 10 May 2018 the Tribunal made an oral decision and gave an undertaking to provide written reasons within 14 days. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

3.    The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

4. The parties presented at the Tribunal hearing with 6 witnesses, all of whom gave evidence. The Tribunal found the evidence provided by those witnesses and the parties open, compelling and consistent with a finding that the parties are in a genuine, continuing and exclusive spousal relationship as envisaged by the Migration Act for the following reasons.

5.    The applicant is a citizen of India born on 10 June 1980 (37 years old). He first arrived in Australia on a student visa on 26 September 2007. He was granted a subclass 461 (New Zealand Citizen Family Relationship (Temporary) visa on 8 April 2011 and granted a subclass 820 visa on 10 June 2014.

6.    He has declared two previous marriages; one to Ms Gurpreet Kaur from 7 June 2007 until it ended in divorce on 18 August 2010; the second to Ms Viona Pule on 9 October 2010. That relationship ended in divorce and was decree nisi on 7 April 2013. The applicant claims the marriage ended on 3 May 2011.

7.    The review applicant is an Australian citizen born on 9 July 1967 (50 years old). She was previously married from 1990 until March 2010 and has two children from that relationship; Felicia, born in 1992 (25 years old) and Daniella, born in 1994. She was not divorced from her first husband before he passed away in January 2012.

8.    The parties first met in Brisbane on 30 July 2011 and claim to have committed to a shared life together on 16 December 2011. They lodged their application for the combined 820/801 visa on 30 May 2013. The subclass 820 was granted on 10 June 2014. They registered their relationship on 21 April 2013.

9.    The delegate refused their application partially because of an allegation received suggesting that the applicant and the sponsor had engaged in a contrived relationship for the purposes of a migration outcome. The Tribunal put these matters to both parties and found their evidence in this regard does not support the allegation.

CONSIDERATION OF EVIDENCE AND FINDINGS

1. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse or de facto partner of the sponsoring partner, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen and was identified in the related Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

2. In forming an opinion whether they are in a de facto relationship, consideration must be given 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.1.09A(3) which is attached to this decision.

3. The Tribunal has considered the 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 and is satisfied that the evidence provided supports a finding that the parties have an ongoing commitment to a shared life together as spouses.

4. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework and is satisfied that the consistent evidence provided by the parties and their witnesses support a finding that the parties live together as spouses.

5. The Tribunal has considered the social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with 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. The evidence provided by the parties and their witnesses was compelling. The parties present themselves as a married couple and evidence provided was from friends and tenants who had known and/or lived with the applicants for many years. The Tribunal is satisfied that the parties have a shared household and have made a commitment to each other to the exclusion of all others.

6. The Tribunal has considered the 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. The parties have known each other for almost seven years and lived together in a joint household for six years. The Tribunal is satisfied that the evidence provided supports a finding that the parties are in a genuine, continuing and exclusive relationship envisaged by the Migration Act.

7. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of this decision. Therefore, the applicant meets cl.801.221(2)(c).

Are the additional criteria for a de facto relationship met?

1. The parties registered their relationship in April 2013 – almost two years after they first met and around one year after they began living together. They purchased a house together in December 2012. The Tribunal accepts the reasons why they did not decide to marry.

2. The Tribunal is satisfied that the parties meet the requirements of being in a de-facto relationship and therefore satisfy  r.2.03.

CONCLUSION

1. 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 801 visa.

DECISION

1. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

   ·cl.801.221 of Schedule 2 to the Regulations

   ·r.2.03A

Ann Duffield
Senior Member