SWAN (Migration)

[2017] AATA 827

SWAN (Migration) [2017] AATA 827 (10 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sandeep Kaur SWAN

CASE NUMBER:  1611648

DIBP REFERENCE(S):  BCC2015/1406822

MEMBER:Michelle East

DATE:10 May 2017

PLACE OF DECISION:  Perth

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) of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 10 May 2017 at 10:40am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Genuine spousal relationship – Financial arrangements – Household shared with extended family – Birth of two children – Candour and obvious affection – Attendance at family events

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulation 1994, Schedule 2, cl 820.211, r 1.15A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 20 July 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 May 2015 on the basis of her relationship with her sponsor. 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). 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.820.211 because the delegate was not satisfied the applicant and her sponsor were in a genuine spousal relationship.

4. The parties attended the Tribunal on 1 May 2017 for a hearing and to give evidence.  The Tribunal also received oral evidence from two witnesses, Mr Puneet Singh, a family friend and Mr Ram Singh, the applicant’s brother in law.  Other family members were available to give evidence but the Tribunal did not consider it necessary to hear further evidence from them.

5. The Tribunal was assisted with the services of an interpreter in the Hindi and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of s.5F of the Act.

   Whether the parties are in a spouse or de facto relationship

8. 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.

9. ‘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 husband and wife 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 as to 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), which is extracted in the attachment to this decision.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The Tribunal was provided with a copy of the parties’ Marriage Certificate extracted from the Hindu Marriage Register dated 30 January 2015 certifying the parties were married on 10 November 2014. 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 spousal relationship met?

    Financial aspects of the relationship

11. The Tribunal has regard to the evidence provided relating to the financial aspects of the relationship, including joint ownership of assets and joint liabilities, the extent of any pooling of financial resources, any legal obligations owed by the other party and any sharing of the day to day household expenses.

12. The parties have provided evidence of their joint bank account with the Commonwealth Bank for the period 1 July 2016 – 30 December 2016.  The account shows regular deposits of salary from H&R Block Ltd at which both the applicant and her sponsor worked as a tax agent during July – November, preparing tax returns.  Transfers are made for direct debit payments for household bills and also home loan payments.  The transaction history also shows regular eftpos payments for groceries and household expenses. 

13. A further statement from their joint Commonwealth Bank account was also provided showing recent transactions which reflect the everyday nature of the household purchases.

14. The Tribunal was also provided with pay slips from both parties from their employment with H&R Block from July – December 2016.

15. Evidence was provided by both parties that they live in a shared household with the sponsor’s brother and his wife and 7 year old child.  The sponsor’s parents also stay with them for significant amounts of time with them when visiting from India.  The parties indicated expenses for the household are often shared between the two families.

16. The parties have provided further evidence to show that payments for their Synergy account are debited against their joint bank account.

17. A home loan statement provided by the ANZ shows the account as only being in the sponsor’s name.  The sponsor confirmed the house was purchased in his name only.

18. The parties have provided copies of their superannuation accounts in which each is listed as the other’s 100% beneficiary.

19. The parties have indicated they purchased a property in Brabham and the parties advised the property is owned in the sponsor’s name only. The bank statements demonstrate deductions are made from the parties’ joint account for the mortgage payments.

20. The parties have also produced documentation indicating they jointly own a vehicle.

21. The Tribunal is satisfied based on the parties’ oral and documentary evidence that the pooling of their financial resources and sharing of day-to-day expenses are indicators of a genuine and continuing spousal relationship.

    Nature of the household

22. The Tribunal has had regard to the evidence as to the nature of the household including the parties’ living arrangements, the caring of any children and any sharing of housework.

23. The parties’ evidence is that in January 2014 the sponsor was visiting in India when he met the applicant at a friend’s house.  This meeting was arranged to introduce the applicant to the sponsor with the prospect of their marrying.  They started a friendship at this time and the sponsor returned to Australia on 17 April 2014.

24. The parties kept in regular contact during this time and on 31 August 2014 the sponsor proposed marriage.  The parties both gave evidence indicating they needed this time to see whether a marriage would be suitable between them.

25. On 19 October 2014 the sponsor travelled to India for the wedding and on 10 November 2014 the parties were married.  The applicant’s evidence is they went on their honeymoon and travelled together before the sponsor returned to Australia on 13 March 2015.  On 19 March 2015 the applicant was granted a tourist visa and she arrived in Australia on 8 May 2015.  The applicant was pregnant at this time having fallen pregnant on her honeymoon.  The parties applied for the visa the subject of the current application on 15 May 2015.

26. The parties have indicated they lived in a rental property in Rivervale with the sponsor’s brother’s family until January 2016 and from that time have lived in their own property in Brabham which is also shared with the sponsor’s brother and his family.  Various pieces of correspondence sufficient to confirm the parties have lived at the Brabham property have been provided to satisfy the Tribunal they live there together.

27. The parties have provided evidence of their first son’s birth on 7 September 2015 and have recently advised the Tribunal their second son was born on 20 April 2017.  In their oral evidence, the parties advised they both care for their young sons, particularly after the applicant’s recent caesarean section delivery for her second child.

28. The parties described their household as a joint family living arrangement.  They explained to the Tribunal this is quite common in Indian society.  As mentioned earlier, the applicant and sponsor live with the sponsor’s brother and his wife and 7 year old child.  The sponsor’s parents visit for extended periods of time and also live in the house with them.  Both parents attended the hearing and were prepared to give evidence if necessary.  The sponsor explained that the parents are not required to do any work in the house as it is now the younger generation’s responsibility to care for their parents.  They did say however with the recent birth of the baby his mother has been quite helpful.  The sponsor’s brother gave evidence that each family member assists in the running of the house however it is mainly the applicant and her sister-in-law who do the chores.  Both the applicant and the sponsor agreed with this evidence although it appears everyone is contributing at the present time.

29. Evidence was also provided to the Tribunal showing the applicant’s mother and sister have both visited recently to help the applicant with the children.  They too have stayed with the families in the household.

30. On the basis of the documentary and oral evidence provided to the Tribunal it is satisfied that the nature of the household of the applicant and her sponsor is an indicator of a genuine and continuing spousal relationship.

    Social aspects of the relationship

31. The Tribunal has had regard to the evidence provided as to whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.

32. Form 888 Statutory Declarations were provided by the parties’ neighbour, Ievgenii Andriienko and their friend, Dhanveer Singh Gill.  Both deponents attested to the close and loving relationship of the parties.  Mr Puneet Singh also provided a Form 888 to the Tribunal.  This was supported by his oral evidence in which he too attested to the close relationship between the parties and his personal knowledge of their relationship.

33. Mr Ram Singh, the applicant’s brother, also gave evidence to the Tribunal confirming the parties’ living arrangements and his belief as to the genuineness of the parties’ relationship.

34. Many photographs were provided to the Tribunal of the parties in a variety of social settings, including their wedding, birthdays, dinners, picnics and at the birth of their first and second child.  The parties also produced a family photo album at the hearing which displayed photos of them together through various stages of their relationship dating back from their wedding to the birth of their second son.

35. Further witnesses attended the Tribunal to give evidence in support of the parties’ relationship however the Tribunal did not consider it necessary to hear from them given the strength of the evidence already presented to the Tribunal.

36. Having considered the documents provided together with the oral evidence of the parties and the two other witnesses, the Tribunal finds that evidence of the social aspects of the parties relationship is an indicator of a genuine spousal relationship

    The nature of the persons’ commitment to each other

37. The Tribunal has had regard to the evidence provided in relation to the nature of the persons’ commitment to one another including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long term.

38. The parties met when the sponsor was visiting India in January 2014.  The parties were open in saying this was in the hope of arranging a marriage between them.  After the sponsor’s return to Australia in April 2014 the parties kept communicating and on 31 August 2014 the sponsor proposed marriage.  The parties married in India on 10 November 2014 and the sponsor returned to Australia in March 2015 with the applicant following in May 2015.  The parties have lived here together since her arrival.  On 7 September 2016 their first child was born and on 20 April 2017 their second son was born.

39. The applicant in her written statements has been very overt in her feelings towards her husband.  She frequently describes him as the best thing in her life and in her original application said ‘I love him like a fat kids (sic) love cake.  If Kulwinder have 1000 years of age I just want to have 999 years and 364 days so I never have to live a day without My Kulwinder’.

40. The parties impressed the Tribunal with their candour and obvious affection for one another and also their two small children. The Tribunal was also impressed by the level of support and caring from the sponsor’s extended family for the applicant.

41. The parties also discussed how they planned to open a business selling Indian merchandise when the right premises become available.  The sponsor advised the Tribunal he has his own taxi plates and he works as a taxi driver as well as a tax agent at H&R Block.

42. Having heard the parties’ evidence at the hearing together with that of their witnesses, Mr Ram Singh and Mr Puneet Singh, the Tribunal finds their level of emotional commitment and degree of companionship and support to each other is an indicator of the genuineness of their spousal relationship.

    Conclusion

43. Based on the evidence before it the Tribunal is satisfied the parties have a mutual commitment to a shared life together to the exclusion of all others.  The Tribunal finds the parties are in a genuine and continuing relationship and that they live together and not separately and apart on a permanent basis.

44. On the basis of the above the Tribunal is satisfied that the requirements of s5F(2) are met at the time of application.

45. The Tribunal finds at the time of the application the applicant was the spouse of a person who is an Australian citizen, that the applicant was being sponsored by that person and the sponsor was not prohibited from being a sponsoring partner under cl.820.211(2B).  The Tribunal finds that at the time the application was lodged, the applicant was the holder of a substantive visa.  Accordingly, the Tribunal finds that the applicant meets cl.820.211(2)(a),(c) and (d).

46. The Tribunal finds that the applicant continues to meet the requirements of cl.820.211(2) at the time of this decision.  Therefore the applicant satisfies cl.820.221.

47. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the date of this decision the parties were in a spousal relationship.

48. 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

49. 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) of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    Michelle East
    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).