Taylor (Migration)

[2024] AATA 945

Taylor (Migration) [2024] AATA 945 (6 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Jessica Anne Taylor

VISA APPLICANT:  Mr Mahesh Saini

REPRESENTATIVE:  Ms Carina Ford

CASE NUMBER:  2317740

DIBP REFERENCE(S):  BCC2022/2062904

MEMBER:Cheryl Cartwright

DATE:6 March 2024

PLACE OF DECISION:  Melbourne

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(2) of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

Statement made on 06 March 2024 at 7:01pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – visa history including overstay, previous applications, withdrawal of previous sponsorship and claim of family violence – possibility that current relationship contrived – previous application with sponsor invalid and applicant departed Australia – validly married – financial, household and social aspects of relationship and nature of commitment – length of relationship – applicant living in home country but remains named on lease – sponsor’s physical and mental health conditions, termination of pregnancy and travel to applicant’s home country – supporting statements – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 360(2)(a), 375A
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 October 2023 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 June 2022 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211(2) because there was insufficient evidence to demonstrate that the visa applicant is the spouse of the review applicant as defined under s 5F of the Act.

4. On 2 November 2023 the Tribunal received an application from the parties for a review of the decision.

5. Upon reviewing submissions as well as the further evidence that was received on 5 March 2023, the Tribunal considered that, based on the material before it, a hearing was not required and that the review should be decided in the review applicant’s favour pursuant to s 360(2)(a). The Tribunal cancelled the hearing that was scheduled for 8 March 2023.

6. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicant and the review applicant are spouses for the purposes of the Act.

9. As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

   Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

10. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application and the date of the delegate’s decision.

11. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 309.221 (a time of decision criterion) as well.

    Background

12. The visa applicant first arrived in Australia on 6 December 2007 as the holder of a higher education sector visa (subclass 573) which ceased on 15 March 2010. On 19 April 2010 he was granted a bridging visa (WE) for the purpose of applying for a substantive visa in Australia. This visa ceased on 27 April 2010. On 27 April 2010 the visa applicant lodged a partner visa (subclass 820/801) with his now ex-spouse and this was refused on 21 September 2011. An appeal of the refusal decision was affirmed by the Migration Review Tribunal on 21 May 2013 and the visa applicant lodged a request for Ministerial Intervention on 16 May 2013. On 25 November 2016 the outcome of the Ministerial Intervention was that he was granted a visitor visa (subclass 600) which ceased on 25 May 2017 and this was granted so that the visa applicant could lodge a partner visa application. On 24 May 2017 the visa applicant lodged an application for a visitor visa (subclass 600) and was granted a further stay until 22 June 2017. On 19 June 2017 he lodged an application for a visitor visa (subclass 600) in order to stay until 20 March 2018 and this application was refused on 21 June 2017. On 18 July 2017 he applied for a review with the Administrative Appeals Tribunal but had not met the required timeframe. On 14 September 2017 he unsuccessfully appealed to the Federal Court.  

13. On 16 November 2021 the visa applicant applied for a partner visa (subclass 820/801) with his current sponsor, the review applicant; however, the application did not meet the schedule 1 requirement and the application was invalidated on 17 November 2021. The visa applicant departed Australia on 8 May 2022 and applied for a partner visa (subclass 309/100) with his current sponsor. The application was refused on 13 October 2023 and is now the subject of this review by the Tribunal.

14. In a joint statement dated 29 February 2024, the parties claim to have met on 19 July 2015, both being married at the time to other people. As they had met through mutual connections, they continued to see each other at events. They eventually left their respective partners; it’s claimed that the review applicant’s partner was abusive and controlling.

15. The parties moved to a shared house in June 2017 and in December 2018 moved to a rental property on their own.

16. The sponsor suffers a number of health issues, including post traumatic stress disorder and cystic fibrosis.

    Whether the parties are in a spouse or de facto relationship

17. 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 is an Australian citizen. A copy of her passport is on file.

18. ‘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?

19. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married at St Michael’s Uniting Church, Collins Street Melbourne on 31 October 2021. A copy of the marriage certificate is on file. 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 spouse relationship met?

    The financial aspects of the relationship

20. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

21. There is no evidence before the Tribunal that the parties jointly own real estate or other major assets or that the parties have any joint liabilities or that one person in the relationship owes any legal obligation in respect of the other.

22. The parties have individual bank accounts as well as a joint account. When the visa applicant was living in Australia, their salaries were paid into their individual accounts and they both have cards to the joint account as well as the review applicant’s account. They plan financial management by transferring funds between the accounts depending on expenditure requirements and, generally, transferring funds from their personal accounts to the joint account to cover household expenses.

23. The parties provided to the Tribunal detailed copies of bank accounts, showing transfers from both parties’ individual accounts to the joint account and expenditures from the joint account on household items and social activities.

24. The parties have been living in separate countries since May 2022 and the visa applicant is not working. He is being supported financially by his parents as well as the review applicant.

25. The Tribunal notes the evidence provided at the time of application and at the time of this decision and is satisfied that the parties, when living in the same country, share responsibility for day-to-day household expenses.

    Nature of the household

26. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

27. There is no evidence that the parties have any children together. The parties provided evidence of an ultrasound examination dated 8 October 2020. In their joint statement dated 29 February 2024 mentioned above the parties stated that the review applicant had become ill due to her cystic fibrosis and could not receive the required treatment for this because of the pregnancy. Then complications with the pregnancy contributed to the parties’ decision to terminate the pregnancy.

28. In their joint statement mentioned above, the parties state that the visa applicant has remained on the lease for their shared home in Melton South, even though he returned to India in May 2022.

29. The parties stated that they had shared responsibility for household tasks, with the review applicant doing most of the cooking and the visa applicant responsible for mowing the lawn, although this task would often be tasked to hired help. They would do grocery shopping together on a weekend.

30. The parties have three cats and the review applicant shares pictures of the cats in her social media communications with the visa applicant in India.

31. The Tribunal has considered the evidence provided at the time of application and at the time of this decision and is satisfied that the parties, when the visa applicant was living in Australia, lived together in a genuine spousal relationship and shared responsibility for household duties.

    Social aspects of the relationship

32. 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 are relevant matters to be considered in determining the social aspects of the relationship.

33. The parties provided a number of photographs of themselves in a range of locations, and photographs of themselves with family and friends both in Australia and in India, and also including a photograph of the visa applicant’s tattoo of the review applicant’s name.

34. The visa applicant met the review applicant’s parents and her brother in May 2017, staying with the review applicant’s mother in Uralla. The review applicant met the visa applicant’s parents when they visited Australia in October 2018.

35. The parties had planned to hold a large Indian wedding but the plans were put on hold because of COVID restrictions. When they married in Australia on 31 October 2021, restrictions had been eased slightly and they were allowed to have 20 people at the wedding. Close friends of both parties attended the wedding.

36. The review applicant visited India in April 2023 staying at the visa applicant’s family home and meeting extended family and friends as well as undertaking some sightseeing.

37. In a statutory declaration dated 12 February 2023, the visa applicant’s brother who lives in Australia, Parvesh Saini, states that he attended the parties’ wedding and socialises with them regularly.

38. In a statutory declaration dated 12 February 2023, a friend of the visa applicant Manjinder Singh states that he was a groomsman at the parties’ wedding and he often socialises with the parties.

39. The Tribunal has considered the evidence provided at the time of application and at the time of this decision and is satisfied that, when the visa applicant was living in Australia and when the review applicant visited India, the parties socialised and presented themselves as a married couple. The Tribunal is also satisfied that the parties’ friends and relatives see them as a couple in a genuine spousal relationship.

    Nature of the persons’ commitment to each other

40. The duration of the relationship, the length of time during which the persons lived together, the degree of companionship and emotional support that the persons might draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

41. The Tribunal notes that, at the time of application on 7 June 2022, the parties had been married for eight months and, at the time of this decision, the parties have been married for over two years and gives some weight to this length of time. The parties have been together as a couple for six years.

42. In their joint statement mentioned above, the parties state that soon after the review applicant was granted her driver’s licence, the visa applicant called from India – early in the morning in India – to check when she drove to work the first time in case there was a problem. They state that ‘he is more relaxed about it now’.

43. They also stated that, when the visa applicant boarded the flight for his return to India in May 2022, and while his flight was in progress, his parents called the review applicant because they were concerned for her.

44. The parties shared their grief at the loss of their baby and have decided not to try again for a baby because of the review applicant’s health.

45. The review applicant plans to visit India again in April-May 2024 and stay for one month and will meet more of the visa applicant’s family.

46. The parties would like to purchase a home so that they can create a ‘cat-friendly’ environment for their pets, which is not possible to do in a rental property.

47. The Tribunal notes the limited evidence provided at the time of application and gives little weight to the limited evidence.

48. The Tribunal notes the evidence provided to it and, at the time of this decision, is satisfied that the parties provide each other with companionship and emotional support and see their relationship as long term.

    Non-disclosure certificate

49. The Department provided to the Tribunal a non-disclosure certificate dated 3 January 2024 pursuant to s 375A of the Act. The certificate states that folios relating to the s 375A certificate contain information that was provided in confidence to the Minister or to an officer of the Department. The certificate states that the disclosure, otherwise than to the Tribunal of the relevant information would be contrary to the public interest because it could disclose lawful methods for preventing, detecting, and investigating breaches or evasions of the law which would or would be likely to prejudice the effectiveness of those methods.

50. The information relevant to the certificate states that the visa applicant has an ‘immigration history of concern’ and has been ‘an overstayer’. It also states that in a previous partner visa application the sponsor of the visa applicant had withdrawn her sponsorship because of family violence caused by him. It also states that the visa applicant’s current relationship with the review applicant might be contrived.

51. The Tribunal has noted below in the Conclusion of this decision the visa applicant’s visa history and has also considered the information covered by the s 375A certificate. For reasons mentioned below, the Tribunal has decided to give little weight to the information.

    Conclusion

52. Tribunal has considered all the evidence provided and notes the visa applicant’s past visa experience, and the evidence provided in the information covered by the s 375A certificate. The Tribunal is concerned that the visa applicant’s numerous attempts to gain a visa could indicate that the current visa application is contrived and undertaken in order to gain an Australian visa.

53. Nevertheless, on balance, considering all the information provided to it, including the information covered by the s 375A certificate, the Tribunal accepts the evidence provided and is satisfied that the visa applicant is committed to a long-term spousal relationship with the review applicant.

54. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.

55. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, both at the time of application on 7 June 2022 and at the time of this decision, the visa applicant and the review applicant:

    ·had and have a mutual commitment to a shared life as wife and husband to the exclusion of all others, as required by s 5F(2)(b) of the Act;

    ·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and

    ·lived and live together as much as possible as required by s 5F(2)(d)(i) of the Act.

56. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of application and at the time of this decision.

57. Therefore, the visa applicant meets cls 309.211 and 309.221.

58. 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

1. 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(2) of Schedule 2 to the Regulations

   ·cl 309.221 of Schedule 2 to the Regulations

   Cheryl Cartwright
   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).