Sukhwinder Kaur (Migration) - [2024] AATA 2790

Sukhwinder Kaur (Migration) [2024] AATA 2790 (1 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Sukhwinder Kaur
VISA APPLICANT:  Mr Kiran Pal Singh
REPRESENTATIVE:  Mr Sukhjinder Pal Singh (MARN: 0960676)
CASE NUMBER:  2100974
DIBP REFERENCE:  BCC2019/5165174
MEMBER:Suseela Durvasula
DATE:1 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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 01 July 2024 at 9:22am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – 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
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 Home Affairs on 11 January 2021 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 14 October 2019 on the basis of his relationship with his 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.
The delegate refused to grant the visa as the visa applicant did not satisfy cl 309.211(2). The delegate was not satisfied the visa applicant was the spouse of his sponsor, the review applicant, at the time of the visa application and that the parties were in a genuine and continuing relationship. The delegate found that the parties had not provided sufficient information about the relationship.
The review applicant appeared before the Tribunal on 14 June 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the visa applicant is the spouse of the sponsoring partner, being the review applicant.
Background
The visa applicant is a 44-year-old Indian citizen who was born in Punjab. His sponsor, the review applicant, is a 40-year-old Australian citizen who was born in India.
At the time of the visa application, the review applicant was an Australian permanent resident and held a Subclass 186 Employer Nomination visa which was granted on 13 August 2019. At the time of decision, she is now an Australian citizen and has provided a copy of her Australian passport biodata page.
The visa applicant has previously lived in Australia. He first arrived in Australia on 20 June 2008 on a student visa. This visa ceased on 2 September 2010 and he applied for a protection visa on 8 September 2010. The visa was refused and the then Refugee Review Tribunal affirmed the refusal decision on 8 August 2011. The visa applicant remained in Australia without a valid visa and departed Australia on a Bridging E visa on 1 March 2019.
Both the visa applicant and the review applicant have previously been married. The review applicant’s marriage ended in divorce on 12 August 2011. A divorce certificate is on file. There are no children from this relationship. The visa applicant’s previous marriage ended in divorce on 14 November 2010. There are no children from this relationship.
The parties claim to have met on 23 August 2019 when the review applicant was visiting India. They committed to a relationship on 28 August 2019 and were married in India on 6 September 2019. The marriage was registered on 12 September 2019 and a marriage certificate is on file. The review applicant returned to Australia on 2 October 2019. The visa application was lodged on 14 October 2019 and was refused on 11 January 2021.
In a statement provided with the visa application, the parties state their marriage was arranged by their families. The review applicant and her parents met the visa applicant and his parents at the house of the review applicant’s uncle. They talked and exchanged contact numbers. Two days later they went shopping together and got to know each other better. The visa applicant proposed and the families met again to fix the marriage date on 28 August 2019. The marriage ceremony was performed at the Gurudwara and they visited religious places and their relatives afterwards. As the marriage date was fixed in a short period of time, they did not have time to invite all of their relatives. They had a reception party on 22 September 2019 and went to a temple on 24 September 2019. The review applicant had to return to Australia for work on 2 October 2019.
At the hearing, the parties confirmed this evidence and added that the review applicant’s aunt was from the same village as the visa applicant’s family, and had arranged their meeting.
Since the marriage, the review applicant has since been to India 3 times to visit the visa applicant: between 24 January 2020 and 11 March 2020, 25 February 2021 and 19 April 2022 and 29 April 2023 and 19 June 2023. She applied for a travel exemption to travel during the COVID pandemic.
Whether the parties are in a spouse or de facto relationship
Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who was an Australian permanent resident at the time of application and an Australian citizen at the time of decision.
‘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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. In this case, the Tribunal is satisfied that the parties were married in India, the marriage was registered on 12 September 2019 and the marriage is valid under Indian law. On the evidence, the Tribunal is satisfied that 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?
The Tribunal found both the review applicant and visa applicant to be credible witnesses who gave consistent evidence and detailed evidence about their relationship. They demonstrated a good knowledge of each other’s background and circumstances. The Tribunal therefore accepts their evidence as to the circumstances in which they met and decided to marry, got married, how they have subsequently maintained their relationship and their future plans.
The delegate refused the visa as there was limited evidence about the relationship at the time of application. It appears the Department did not make any follow-up requests for information before refusing the visa. The Tribunal notes that the Australian High Commission in New Delhi was in lockdown at the time of the visa refusal due to the COVID pandemic. The Tribunal now has considerably more evidence available to it than was available at the time of application and at the time of the delegate’s decision. In this regard, the Tribunal has had regard to the subsequent history of the relationship and the additional supporting documentation to establish that it was genuine and continuing at time of application.[1]
[1] Bretag v MILGEA unreported, Federal Court of Australia, O’Loughlin J, 29 November 1991
The Tribunal now considers the factors under reg 1.15A(3).
Financial aspects of the relationship
The Tribunal accepts that at the time of application, the parties did not need to establish joint financial arrangements as they lived in different countries. The parties have now provided evidence of joint financial arrangements since the time of application. The parties have established a joint bank account for the visa applicant’s use and for their joint use when the review applicant visits India. The Tribunal accepts the review applicant’s evidence that as she earns more, she financially supports the visa applicant by sending him 10,000 rupees per week. Money transfer receipts have been provided to the Tribunal. The visa applicant receives some income from leasing farm land.
The parties have provided other evidence of the financial aspects of the relationship at the time of decision. Receipts demonstrate that they have pooled their resources to purchase household furniture, whitegoods and a television. The parties have provided evidence that they purchased a car in 2021. While the car is in the review applicant’s name, the Tribunal accepts that they both contributed to the purchase price and it represents a significant joint asset. The visa applicant is nominated as a beneficiary in the review applicant’s superannuation account.
Overall, the evidence about the financial aspects of the relationship establishes that the parties are in a genuine and continuing relationship.
Nature of the household
At the time of application, the Tribunal accepts the parties had not yet had an opportunity to establish a joint household as they lived in different countries. The parties have now provided evidence that they have lived together in India at the visa applicant’s house with the visa applicant’s mother for extended periods – from 24 January 2020 to 11 March 2020 (approximately 2 months), 25 February 2021 to 19 April 2022 (approximately 14 months) and 29 April 2023 to 19 June 2023 (approximately 2 months). This evidence includes: receipts and other documents showing that they lived at the same address, statements from third parties who witnessed them living at the same address; and a copy of the review applicant’s Indian driver’s licence.
The Tribunal gives weight to the fact that the review applicant lived with the visa applicant for 14 months in 2021/2022 as they had an opportunity to set up a joint household during that time. At the hearing, the parties gave consistent evidence about their daily routines, household arrangements and sharing of household tasks during that time.
The evidence about the nature of the household establishes that the parties are in a genuine and continuing relationship.
Social aspects of the relationship
The Tribunal accepts that the parties present as a couple to their friends, family and the Punjabi Sikh community, both in Australia and India. They publicly celebrated their wedding at a religious ceremony and a reception where they invited approximately 150 people from their villages. The parties have provided several photos of them together, along with friends and family members in India, undertaking travel and social activities such as family weddings. Receipts and photographs demonstrate that they have taken short holidays together in India.
The Tribunal has several statements from friends and family members attesting that their relationship is genuine and continuing. In particular, the review applicant’s mother and the visa applicant’s mother speak of the difficulty the parties experience being separated from each other and their affection for each other. The review applicant has also told her employer and her friends in Australia about her relationship. The review applicant has contact with the visa applicant’s brother in Australia and the visa applicant regularly visits and assists the review applicant’s mother. The review applicant has declared her relationship to the government authorities such as Centrelink and the Australian Taxation Office.
Based on the evidence about the social aspects of the relationship, the Tribunal is satisfied that the parties plan and undertake joint social activities together and that their relationship has been declared to, and accepted by their friends, family members and acquaintances.
Nature of the commitment
In relation to the development of the relationship, the Tribunal notes that the parties decided to marry within a short period of meeting each other for the first time. However, the Tribunal accepts that the match was arranged by their families and they were both looking for a marriage partner at that time. They both have the same cultural, ethnic and religious background and values and the match was approved by their families. They were therefore able to agree to marry reasonably quickly. Their relationship has now been ongoing for almost 5 years, which the Tribunal considers overcomes any concerns regarding the short inception of the relationship.
The Tribunal has considered the visa applicant’s immigration history. There is no dispute that the visa applicant previously lived in Australia; applied for a protection visa which was refused; remained in Australia unlawfully after the visa was refused; and departed Australia on a Bridging E visa in 2019. This history may raise some concerns that the visa applicant has entered into a relationship for migration purposes. At the hearing, the Tribunal discussed the visa applicant’s immigration history with both parties. The Tribunal accepts that the visa applicant has discussed his previous history with the review applicant and that she is aware of it.
The Tribunal considers that part of the visa applicant’s motive may be to return to Australia, where his brother also lives. The Full Federal Court has held that people enter into marriages with a variety of purposes and motives.[2] It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, for example with the hope of gaining permanent residency. The Tribunal should consider whether the parties’ intentions or motives for entering into a relationship are consistent with having a mutual commitment to a shared life.[3]
[2] See Re MILGEA and Dhillon [1990] FCA 144, Northrop, Willcox and French JJ, citing with approval Street CJ in R v Cahill (1978) 2 NSWLR 453, at 458
[3] Harchandani v MIBP [2017] FCA 1395
In this case, the Tribunal is satisfied that the parties have demonstrated a long-term mutual commitment to each other. At the hearing, they demonstrated knowledge of each other’s life and circumstances, described the companionship and emotional support they give each other and the difficulties in being separated, and demonstrated genuine affection towards each other.
The Tribunal gives weight to the length of the relationship at the time of decision. The parties have now been married for 5 years, and have maintained constant contact during that time, as demonstrated by call records and regular visits. In particular, the review applicant has demonstrated a significant commitment to the relationship by seeking a travel exemption during the COVID pandemic and travelling to India to live with the visa applicant for 14 months in 2021/2022. The Tribunal is therefore satisfied the visa applicant and review applicant’s motives for entering into the relationship are consistent with having a mutual commitment to a shared life.
The Tribunal accepts that the parties have discussed and made plans for their future together in Australia. In particular, the Tribunal gives weight to the fact that the parties are now trying to have a child and have already attempted IVF treatment in India, as demonstrated by the medical evidence. The Tribunal accepts that they intend to have further IVF treatment in Australia and are very keen to have children. This demonstrates their

long-term commitment to each other.
On the evidence before it, the Tribunal is satisfied the parties had a long-term commitment to each other at time of application. The Tribunal is satisfied that their commitment remains at time of decision.
Conclusion
Having regard to all aspects of the relationship, the Tribunal is satisfied that, at the time of application and decision, the visa applicant and the review applicant had, and continue to have, a mutual commitment to a shared life to the exclusion of all others. The Tribunal accepts their relationship is genuine and continuing. The Tribunal accepts that they do not live separately and apart on a permanent basis.
The Tribunal finds the visa applicant is the spouse of the review applicant and meets the requirements of s 5F(2) at the time the visa application was made and continues to meet it at the time of this decision. Therefore, the visa applicant meets cl 309.211 at the time of application and cl 309.221 at the time of 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 309 visa.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the 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.
Suseela Durvasula
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).