Thomas (Migration)

[2020] AATA 2968

Thomas (Migration) [2020] AATA 2968 (27 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Verily Thomas

VISA APPLICANT:  Mr Harpal Singh

CASE NUMBER:  1821065

DIBP REFERENCE(S):  BCC2016/3544536 BCC2018/5357981 BCC2018/5357985

MEMBER:Christine Cody

DATE:27 April 2020

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; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 27 April 2020 at 5:04pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and ongoing relationship – extended family support for relationship – sharing of financial resources – evidence of regular communication – social recognition of the relationship –  care and support of their child – DNA testing – supportive evidence from witnesses contacted spontaneously – exchanges of culturally sensitive gifts – past immigration history – decision under review remitted   

LEGISLATION

Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW – SUMMARY

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 12 June 2018 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 25 October 2016 on the basis of his relationship with his sponsor, the review applicant, Verily Thomas. 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 the applicant.

3. The delegate refused the application on 12 June 2018 on the basis that the visa applicant did not satisfy cl.309.221 as the delegate considered that the evidence was not sufficient to show that the visa applicant was the spouse (as defined in s.5F of the Act and r.1.15A of the Regulations) of the review applicant as the delegate was not satisfied that the applicants were in a genuine relationship. As the visa applicant could not then be considered the holder of a Subclass 309 visa the delegate also refused the application for a Subclass 100 (permanent) visa.

4. An application for review was lodged with the Tribunal on 20 July 2019; this application was invalid as the visa applicant had been listed as the review applicant. A corrected application form was then lodged on 25 July 2019. The review applicant was represented in relation to the review by her registered migration agent.

5. There were a number of concerns held by the delegate which were shared by the Tribunal; there were additional concerns raised by the Tribunal. However, having had regard to the significant documentary and oral evidence, in particular considering the applicants’ own evidence about their relationship as well as evidence taken spontaneously from witnesses, the Tribunal accepts that the applicants are in a genuine relationship and that the visa applicant is the spouse (as defined) of the review applicant. Thus, the Tribunal has concluded that the matter should be remitted for reconsideration.

   The Department

6. According to documents provided to the Department, the review applicant was born in 1972 in Zimbabwe. She arrived in Australia in 2001 holding a skilled work visa. She then was granted a permanent independent visa (Subclass 136) and became an Australian citizen.

7. The review applicant was in a relationship from September 2001 until June 2005; there are two children from this relationship, who are now teenagers. The review applicant was in another relationship from May 2005 until May 2006; there is one child from this relationship. The review applicant had another relationship from October 2008 until January 2014.

8. Harpal Singh, the visa applicant, was born in 1982 in Amritsar, Punjab, India. He went to high school and then worked as a computer operator for K S Engineers in India from May 2000 until January 2008. The visa applicant’s mother, father and sister live in India.

9. The visa applicant arrived in Australia holding a student visa. His student visa was valid until 2 August 2010. His reason for being in Australia from 2008 until 2011 was study[1]. He records that during that period, and thereafter he worked in Australia as a kitchen hand and as a chef for a hotel.

   [1] Refer to his Form 80.

10. On 20 May 2010 the visa applicant married a different person, Kahli Sneddon. On 30 July 2010 he applied for a partner (residence) visa on the basis of his relationship with Ms Sneddon. He was granted a Subclass 820 (Temporary Partner) visa, however his application for a permanent partner visa (Subclass 801) was refused by the delegate on 8 February 2012. At the time, the relationship had broken down, and the visa applicant’s to have been a victim of family violence at the hands of his first wife was not accepted. This decision was affirmed by the Migration Review Tribunal (MRT) on 4 October 2013. The MRT was not satisfied that the visa applicant was in a genuine married relationship at any time with Kahli Sneddon (and thus the claim of family violence was not relevant). The visa applicant and his first wife were divorced on 15 January 2014.

11. The visa applicant and the review applicant first met through online dating in mid to late 2013. The visa applicant was living in Melbourne and the review applicant in Sydney. The applicants first met face to face on 13 February 2014 in Sydney. The visa applicant returned to Melbourne and visited again in March 2014. The applicants married on 11 October 2014 in Gladesville, NSW. The applicants had a son together who was born on 1 June 2015. The visa applicant moved to Sydney and the applicants lived together in Sydney from 16 September 2014 until the visa applicant returned to India on 29 September 2016 to lodge the current application. The applicants have lived apart since that time.

12. The Department file consists of three files of documents including those described below. Some of the documents were produced in support; others were produced in response to a natural justice letter.

    The first Department file

13. The first Department file contains the application forms and a Form 80 (Personal Particulars) for the visa applicant, a marriage certificate for the applicants, a birth certificate for the applicants’ son, copies of the applicants’ passports (the visa applicant’s passport issued 8 April 2017 records that his spouse is the review applicant), photos of the applicants and their family, a tenancy agreement for the applicants, written statements by the review applicant and the visa applicant, an affidavit of the visa applicant’s parents, an additional written statement by the review applicant regarding their trip to Bali in September-October 2016 during which they attended a wedding, receipts for flights for the applicants and their family to Indonesia and their travel itinerary, a statutory declaration from a friend of the review applicant, printouts of text message conversations dated from 29 September 2016 until 18 October 2016, an electricity bill in the applicants’ names, a certificate of registration and CTP slip for a car in the visa applicant’s name, screenshots of Whatsapp calls to ‘wife’ in 2016, screenshots of call history to a contact named ‘Wife’ from 1 June to 13 August (no year stated) and again from 19 March to 1 June and again from 9 October 2016 until 29 December 2016, Whatsapp messages from a group chat (between the review applicant’s family and the visa applicant), screenshots of the review applicant’s Facebook timeline, a bank statement for a joint account held by the applicants, a written statement by a neighbour of the applicants (Mr Cogger), bills addressed to the applicants, wedding invitations addressed to the applicants, an Indian police check for the visa applicant, an Australian police check for the visa applicant, an ATO Notice of Assessment for the review applicant, and a letter from the director of Birralee Child Care Centre dated 8 September 2017 stating that the visa applicant has dropped off and picked up his son.

    The second Department file

14. The second Department file contains printouts of text message conversations between the applicants from 20 December 2016 until 15 October 2017.

    The third Department file

15. The third Department file contains printouts of text message conversations between the applicants between 16 October 2016 and 20 December 2016, a Form 80 (Personal Particulars) form for the visa applicant containing additional employment information, a divorce order for the visa applicant and his previous spouse, photos of the interior of a house with photos of children, screenshots of video calls with the visa applicant and of WhatsApp conversations, a written statement of the visa applicant, the visa applicant’s father’s will, and affidavits from the father-in-law of the visa applicant’s sister, the visa applicant’s sister and her husband, the visa applicant’s uncle and aunt, the visa applicant’s parents, the visa applicant, neighbours of the visa applicant, a friend of the visa applicant’s father and neighbours of the visa applicant’s parents.

    Certificate, site visit, potentially adverse information

16. There is a s.376 non-disclosure certificate for folios 639, 640, 659, 664 and 667 on the grounds that disclosure would be contrary to the public interest by compromising the Department’s intelligence gathering tools, and because the information was given in confidence to the Department. These documents were a site visit report (639-640) and internal notes about the site visit and the refusal of the application.

17. While the Tribunal is prepared to accept that the certificate is valid for the reasons claimed, it also notes that some general information from the site visit was provided to the applicants in a letter from the Department dated 5 December 2017 being an invitation to comment on adverse information. In that letter the Department noted that a site visit had occurred on 7 September 2017 at the visa applicant’s residence in India during which time he, his parents and some of his neighbours spoke with Departmental officers. It was submitted that the parents were only able to provide very limited information about the marriage in Australia, which raised concerns about the social recognition of the relationship and the nature of the applicants’ commitment to each other. The neighbours also indicated that they were unaware of the visa applicant’s relationship with the review applicant.

18. The Tribunal notes that the specific details of the summaries of conversations recorded in the site visit report were not provided to the visa applicant when seeking his comments on the adverse information. While this may normally be acceptable if the site visit report contains information given in confidence from some third parties (and it did, from the neighbours), in this report there were reports of what the visa applicant himself said, as well as his parents with whom he lives. The Tribunal considers that the lack of information provided to the visa applicant as to the specifics of the conversations made it somewhat difficult for the visa applicant and his parents to respond. The Tribunal notes however that they did respond, and documents were provided in response from the visa applicant and his neighbours which provided details of the conversations which they said occurred with the Departmental officers; these conversations were however very different versions to the conversations recorded in the site visit (not disclosed).

19. The statements and statutory declarations included those from:

    ·     The visa applicant’s parents who stated that they had told the Department the review applicant’s name, her occupation as a nurse, her age, the name of the grandson, and when asked whether they had any photos of their son’s wife and child, the mother said they were saved on her phone and offered to show them to the officer. She said that they talk to the review applicant although their English is not very good so they just say hello on WhatsApp video on weekends and they do their best to talk to her. When asked if they send any gifts, they said that they sent money and clothes.

    ·     The visa applicant’s parents’ previous neighbour who stated that they were aware the applicants had two children, the parents had moved and were living 10 minutes away, they took the officers to that new address, the officers did not ask them at all about the visa applicant’s marriage in Australia or about his family situation.

    ·     The visa applicant’s parents’ current neighbours who stated that the visa applicant’s parents are their neighbours. They were not asked about the visa applicant’s marriage, however they know about it and they support the marriage.

    ·     Other neighbours of the visa applicant’s parents who confirmed that they know the family, the visa applicant, that he is currently living with his parents, and he is ready made in Australia and has a son. They support the marriage.

    ·     The visa applicant who stated that the neighbours from his parents’ previous address took the officers to the current address. There were no further interviews with close family members or current neighbours who are aware of his marriage and his child in Australia and they are happy to support the statement. When he returned to India he started living with his parents in their new residence and his parents, sister and brother-in-law are fully aware of and are supportive of the relationship and are aware of his son, and this information is supported through statutory declarations, pictures, video messages and greeting cards between the review applicant and his family members. The review applicant has had opportunities to speak to her sisters-in-law who can speak English and also some of the visa applicant’s cousins. There is also communication between his family in India and his wife’s extended family in Zimbabwe and Botswana.

    ·     The visa applicant’s aunt who is aware of the marriage and has spoken with the wife by telephone.

    ·     The visa applicant’s uncle who is aware of the marriage and of his son and that they are happily married.

    ·     The visa applicant’s siblings and in-laws in India who confirmed the marriage and know about the child and that they support this relationship.

20. The Tribunal notes that the Department’s record of the site visit does record some consistent information given by the applicants about their relationship and their circumstances. It was also noted that the visa applicant stated that his family are aware of the relationship and family composition; they are happy for him to marry however he wishes to; the village around the visa applicant and his parents are also aware of his family situation; they communicate by calls and chats (the officer looked at the phone and stated that the chat history and call history was consistent with the claims).

21. The declarants provided their contact details and said that they were prepared to be contacted if there were any further questions.

22. Also provided in response to the site visit concerns were documents indicating that the visa applicant’s parents intend to provide their estate to the visa applicant and his wife and son, and the father provided his deed of will dated 19 December 2017 which stated that he had already given his daughter sufficient dowry and jewellery and she is happily residing in her in-laws house, and when he passes away he leaves his estate to his wife and son and daughter-in-law and grandson.

23. The Tribunal notes that further information from the site visit report was set out in the delegate’s decision record (referred to in paragraphs 29 and 31 in this regard).

    The Department’s reasons for refusal

24. As noted above, the delegate did not accept that the relationship was genuine at the time of application. The reasoning included the following:

25. Concerning the financial aspects, the delegate considered that the bank statements demonstrated limited activities which did not to reflect that the applicants pooled their finances and it was being utilised mutually for daily expenditures for maintaining a joint household. The statement reflects transactions until 2016, so the delegate was unable to assess their present joint financial activities. The car is individually owned by the visa applicant, hence it does not demonstrate any joint and ongoing sharing of financial arrangements between the applicants. The delegate found that there was no evidence of joint ownership, joint loan agreements, shared legal obligations, or that the applicants shared the financial responsibility of rearing their son.

26. The delegate referred to the will of the visa applicant’s father (Mr Kuldeep Singh) dated 18 December 2017 which had been produced in response to the natural justice letter. The delegate noted that he expressed his wish to pass on his property and financial belongings to the applicants, the visa applicant’s mother, and the applicants’ son after his death. While the delegate acknowledged this, the delegate also noted that this will was created after the natural justice letter was sent which indicated that it had been created as evidence to support the visa application. Further, the following statement in the Deed of Will raised concerns: ‘My wife Surender Kaur and my son Harpal Singh and my daughter-in-law Verily Thomas and grandson Treyvon Arjun Thomas Singh look after and take care me. I am very happy from their service. Therefore, I want to give them something in lieu of their good services.’ The delegate noted that neither the review applicant nor the applicants’ son have ever visited India to meet the father; it is unclear how the review applicant could have offered her services to the father.

27. Concerning the nature of the household, the delegate acknowledged that the applicants provided joint utility bills in the form of water and AGL electricity bills for the stated periods. However, they did not provide any evidence to prove that they had pooled their finances for payment of these bills. Given that the applicants did not provide evidence of any ongoing pooling of financial resources or sharing of day-to-day household expenses, the delegate was not satisfied that the applicants share any current or ongoing household responsibilities. The applicants had provided a joint residential tenancy agreement confirming that they shared the same accommodation. While the delegate accepted that the applicants shared the common accommodation from 16 September 2014 to 16 March 2015, the delegate found that the evidence provided did not necessarily prove that they lived together as spouses; they could have also lived together as boarders or roommates. The delegate noted that it is quite common for people to rent and share the same accommodation as individual tenants or as a couple. The delegate was therefore not satisfied that the documents substantiate that the applicants maintained a joint household.

28. Concerning the social aspects, the delegate referred to the statutory declarations and affidavits and noted that the applicants did not provide valid signature-verifiable documents for the majority of the declarants, and therefore the delegate was unable to verify their signatures. The declarants stated that they believed the marriage to be genuine and continuing however the delegate considered the information in the statements limited and general in nature, and the declarants did not provide any justification or explanation for why they believe the applicants’ claimed relationship is genuine and continuing. As such, the delegate gave little weight to the evidence provided to support the social aspects of their claimed relationship. The delegate also noted that the neighbour in Australia, Mr Stephen Cogger, has made general comments stating that he is aware of the relationship and believes that it is genuine, but he did not mention the review applicant’s name in his support letter. Therefore, the delegate did not give much weight to these statements. The delegate sighted photographs of the applicants in Australia along with their child, and other photographs taken of themselves with each other, friends and family and on holidays. The delegate considered that while the photos indicate that the applicants undertook some joint social activities and that the visa applicant met the review applicant’s friends and family and that the applicants have travelled together, they do not constitute convincing evidence of a committed spouse relationship. Furthermore, in the cultural context of India, the delegate noted that there is an expectation for parents’ involvement and attendance at their son’s wedding however there was no evidence of the involvement or attendance of the visa applicant’s parents at the applicants’ wedding. The delegate referred to the invitations to the applicants as a couple, and social media printouts presenting them together, however considered that, in the given social media records, the visa applicant has a limited number of ‘friends’. The delegate found that the evidence provided did not demonstrate that anyone other than the limited number of people in the friend list were aware of the applicants’ relationship and this does not support the claim that the applicants generally represent themselves to other people as being married. Therefore, the delegate gave this little weight as evidence of being recognised socially as a couple.

1. The delegate referred to concerns arising from the site visit and provided more information from the site visit in the decision record than was provided in the letter requesting comments on adverse information before the decision to refuse was made. The delegate noted that the applicants have claimed to be in a committed relationship since they married on 11 October 2014 and it had been more than a year between the visa applicant’s return to India on 29 September 2016 and the date of the site visit conducted on 7 September 2017. The delegate questioned why the visa applicant’s family members were not aware of the applicants’ child and basic information about the review applicant at the time of the visit by Departmental officers. The visa applicant’s family were able to advise that he was married to an Australian. However, they could provide no other substantial information about the review applicant and the applicants’ child, Treyvon Arjun Thomas Singh. They were not aware of her age, cultural and educational background, family composition, or of any details about the wedding in Australia. The delegate found it implausible that the visa applicant’s parents would not have enquired about the review applicant, her family, the marriage and about their child, if the relationship were genuine. The fact that the visa applicant’s parents were unaware of the child and review applicant but could provide detailed information about the visa applicant’s sibling and her family raised concerns for the delegate. The delegate further noted that the visa applicant had not mentioned to his neighbours and local community that he was married which raised serious concerns that the visa applicant does not present himself as being married in his community. The delegate considered the statement addressing concerns raised through the natural justice letter and stated that most of the reasons given to explain the visa applicant’s family and neighbours’ lack of knowledge about the review applicant and the child were not plausible. The delegate noted that the applicants submitted a local newspaper extract dated 19 December 2017 declaring the visa applicant’s relationship with the review applicant and their child. However, the delegate noted that this declaration was published after the natural justice letter had been sent and therefore appeared contrived to support the response to the natural justice letter. The delegate was therefore concerned that this was created with a purpose to support the visa application.

2. Concerning the nature of the commitment of the relationship, the delegate noted that most of the chat and call records submitted were between a user called ‘Wife’ and another person. The delegate was unable to identify this other person. In addition, the delegate noted the majority of the records do not show the year in which the communication took place, except for the records submitted in response to the natural justice letter, and the delegate was therefore unable to ascertain the period of these correspondences. In relation to the holiday to Bali the delegate noted the holiday itinerary for the applicants’ travel to Bali on the visa applicant’s way back to India between September and October 2016 which was to attend a family function of the review applicant. However, while the delegate noted that the applicants live in different countries and it is therefore difficult to demonstrate commitment to each other, neither of the applicants has made any efforts to visit each other since the visa applicant departed Australia for the Bali trip on his way back to India.

3. The delegate was unwilling to make any finding around the child’s paternity. The delegate also noted that, even if the visa applicant is the child’s father, this is still not evidence in itself that the applicants are in an ongoing or committed relationship. The delegate noted that the visa applicant departed Australia on 29 September 2016, and since then the applicants have not attempted to meet each other. Given that the child was born and is presently residing in Australia, the delegate considered it reasonable to expect that some effort would have been made from the applicants to reunite to meet the child. Furthermore, during the site visit, the delegate noted that the visa applicant’s family were able to advise that he was married to an Australian, but could not provide any other substantial information about the review applicant and the child, raising concerns regarding the claimed committed relationship with the applicants and child. The delegate also noted the visa applicant did not demonstrate that he is financially supporting the child and stated that it is generally expected from a father of a child to contribute to the upbringing of the child. Moreover, based on the site visit, the delegate stated that there was no recognition of the relationship with the review applicant and child in the visa applicant’s home community. While acknowledging that the applicants submitted some evidence including photographs, social media extracts, affidavits, a newspaper article, and deed of will from the visa applicant’s father to support the claimed relationship with the review applicant and child in response to the natural justice letter, the delegate had concerns that this evidence was generated after the site visit was conducted and with a purpose to support the visa application.

4. The delegate was not satisfied and had serious concerns regarding the genuineness of the relationship and commitment to each other.

   The post-decision request for reconsideration from the agent raising procedural fairness issues

5. The agent provided a letter dated 23 June 2018 to the Department stating that the purported decision was invalid as it was severely affected by jurisdictional error. In this regard it was stated that the delegate did not afford procedural fairness, did not consider relevant information, considered irrelevant information, incorrectly considered jurisdictional facts and acted unreasonably. The agent noted that specific information from the site visit was not provided to the visa applicant (but was referred to in the delegate’s decision record). It was procedurally unfair for the concerns raised from the site visit to have not been specifically put to the visa applicant, but to thereafter form part of the basis of the decision to refuse the application. They had requested to be provided with a copy of the site inspection record or report but were denied access to that document by the Department.

6. It was also noted that the decision-maker’s assertion that the parties had made no attempt to see each other was incorrect as the applicant had made an application for a tourist visa to visit his wife and child in February 2017 which was refused.

7. The Tribunal is not aware of any response to the agent’s letter.

   The Tribunal

8. The Tribunal file includes a box containing four lever arch file folders (including copies of documents already submitted to the Department as well as new submissions) produced by the agent, and a further file. The submissions included a detailed chronology of events and submissions on the relevant factors under the Regulations.

9. New documents submitted to the Tribunal include receipts of fund transfers between the applicants, a Costco card under both applicants’ names, a feedback form signed by the review applicant, letter from the review applicant and her children to the visa applicant, an email to the real estate agent sent from the review applicant’s email address and signed with both applicants’ names, screenshots of video calls between the applicants and children, a letter from the director of Birralee Child Care Centre regarding the applicants’ relationship, Whatsapp message records between the visa applicant and the review applicant’s older son from 1 August 2018 until 8 August 2018, screenshots from a Centrelink website listing the visa applicant as the partner of the review applicant and carer of the review applicant’s children, three statutory declarations by friends of the review applicant, a statutory declaration by the review applicant’s cousin, a written statement from the visa applicant’s parents, a written statement from a neighbour of the visa applicant, photos of a trip to Canberra in 2015, screenshot of an untranslated Indian newspaper with a mention of the applicant’s 4^th wedding anniversary dated 11 October 2018, photos of a parcel to the review applicant from the visa applicant containing gifts and accompanying photos of the review applicant’s children wearing the gifts, Whatsapp message records between the visa applicant and the review applicant’s brother from 21 March 2017 until 20 June 2018, a wedding anniversary card from the visa applicant to the review applicant, emails between the applicants and their former migration agent, an email from the review applicant on behalf of the visa applicant to the Department, a letter and email from the review applicant to her local member, a letter to the review applicant from the Assistant Minister for Home Affairs, screenshots of Whatsapp call history from 24 December 2017 to 28 July (no year stated), Whatsapp message records between the applicants from 9 July 2017 until 3 August 2018, further screenshots of video calls, photos of envelopes addressed to the review applicant from the visa applicant, photo of a father’s day card to the visa applicant from the review applicant, screenshot of a Facebook post by the review applicant, photos of cards and parcels sent between the applicants, emails between the review applicant and their former migration agent, emails from the review applicant to her local Federal MP’s office and to the Minister for Home Affairs’ office, a letter from the review applicant’s local MP to the review applicant and to the Minister for Home Affairs, screenshots of further video calls, and screenshots of the visa applicant’s superannuation account listing the review applicant and her children as beneficiaries.

10. The text messages are daily conversation between the applicants. The applicants mainly discuss their daily activities and the son they had together. They also discuss the review applicant’s other children. The applicants discuss finances and bills. The applicants occasionally have short arguments in the messages. They discuss plans for the visa applicant to work in India or get a visa to Canada, Singapore, Dubai or the UK and get a job there. The visa applicant teaches the review applicant how to make roti. They discuss a friend named Varun giving the applicants his Visa card details to make payments for their son’s childcare fees.

11. The Tribunal asked the applicants whether they would agree to DNA testing which they did. The DNA test report dated 13 December 2019 stated that the tests carried out on the visa applicant and the child Treyvon indicated that the relative chance of paternity was 99.9995%.

12. The review applicant appeared before the Tribunal on 26 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in India, his parents and the review applicant’s friend Agnes Ross. The Tribunal also had regard to earlier statements of support provided by friends/colleagues of the review applicant in Australia and decided it would assist to call people who were not expecting a call. The review applicant agreed and was forthcoming in providing potential witnesses’ phone numbers. Some were not available, others were, and the Tribunal took additional evidence from Aniel Puddell and Joe Cavaliere who are work colleagues of the review applicant. The agent was also present.

13. The Tribunal forwarded a letter to the review applicant after the hearing with concerns; a detailed response was then provided.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the visa applicant satisfies cl.309.211, namely that he was the spouse of the sponsor at the time of application.

    Whether the parties are in a spouse or de facto relationship

15. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

16. ‘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 r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal is satisfied on the basis of the documents and oral evidence that the applicants are validly married. 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?

18. The Tribunal has considered all the available oral and written evidence and submissions and the relevant law and Regulations.

    Independent witnesses

19. The Tribunal attached positive weight to the evidence given by witnesses whom the Tribunal telephoned on the day of the hearing, unexpectedly. The evidence received from those witnesses was spontaneous and supportive of the existence of the relationship for a long time, its ongoing continuation, and that the enforced separation has been difficult for the review applicant. The Tribunal’s efforts to speak to these witnesses are summarised as follows:

    ·     Ms Gyeong Stroud (a previous declarant) was not available.

    ·     When the Tribunal called the hospital where the review applicant works to try to speak to another declarant, a person called Mr Aniel Puddell answered. He stated that he was an Infection Control CNS work colleague and he had known the review applicant for a few months. With the review applicant’s permission, the Tribunal asked questions of Mr Puddell. He told the Tribunal that she is married to a man from India, they have a son together and the review applicant has 3 other children. He believes the applicants are in a genuine relationship and that she has gone through a significant ordeal by being separated from her husband. He has seen photos of the visa applicant who is a muscular guy, tall, with a big build [the Tribunal accepts that this accords with other photographs of the visa applicant].

    ·     Mr Joe Cavaliere, also from the hospital, confirmed that he had previously provided a statutory declaration in support, he said he has known the review applicant for about 10 years, and he knows she is married. At the time of his evidence he was suffering from a migraine and was off work. He said he was “drawing a blank” on the husband’s name. When asked to describe the husband, he said he met him a few times when he came to work, he is about 6’2” tall, of Indian descent, short hair, clean-shaven. In his view the relationship is genuine, noting that they have a child together, and they continue to communicate and maintain their relationship now, even though he is overseas. He said she would not be putting up with ‘all this garbage’ (living in separate countries) if it was not a genuine relationship. He has also spoken to her husband himself since he has been overseas, because Mr Cavaliere had some issues of which her husband had been aware, and the visa applicant had spoken to Mr Cavaliere to ask him how things were going.

20. The Tribunal also spoke to the witness proposed by the review applicant, namely Agnes Ross. The Tribunal was initially concerned as to why, if this person was the review applicant’s close friend, she had never previously provided a statutory declaration in support of the relationship. Both she and the review applicant said that she had previously provided a statutory declaration, however neither the current agent nor the Tribunal could recall having seen a statement from this witness. Further time was allowed for a copy of the statement to be provided (noting the review applicant said she would have kept a copy) and after the hearing a copy of an earlier statutory declaration was sent to the Tribunal. Ms Ross said in evidence: she has known the review applicant for 20 years. She met her when they were both working as registered nurses in cardiology. Ms ross is currently a nurse area manager for a private company. She was at the wedding and knows the review applicant’s husband. She met him early on, just after the parties had met, they would go for coffees and lunches, including with the review applicant’s children. She believes they are in love and are a genuine family. They are not any different to any other couple, and they talk to each other every day. When asked how she is aware of this, she said that she is in contact with the review applicant very often, they are best friends. She said that the review applicant was a bit wary initially, but spent about 12 months getting to know him, chatting online, to see whether it was worthwhile continuing. She confirmed that the wedding was at the review applicant’s home, in the garden, and family and friends were present.

21. The Tribunal considers that the evidence of both the witnesses contacted spontaneously, and the proposed witness Agnes Ross, was consistent and supportive of the existence of a genuine relationship both at the time of the application and continuing to date.

    Significant consistent evidence between the applicants

22. There was a significant amount of consistent evidence between the review applicant and the visa applicant given at hearing, including for example:

    ·     They both met online on a site called Tagged.

    ·     They both agreed that the visa applicant cooks for the review applicant and the children, that he makes goat stew and roti and other Indian food, and that he will prepare a pasta for the review applicant, because she likes it.

    ·     When they are together he wakes up early and prepares them a tea which they drink together.

    ·     The visa applicant was present during their child’s birth (although the review applicant said that initially he was reluctant to do so because this was contrary to his culture) and the review applicant taught him how to change a nappy and he did change his child’s nappy.

    ·     The visa applicant’s car remains sitting at the review applicant’s home, although they have no longer maintained the registration because of the passage of time.

    ·     The visa applicant used to have a Facebook account, but since he has been with the review applicant, he has not used this account, because she has a Facebook account which uses both their names (this is consistent with the Facebook account details for the review applicant, namely Val Thomas Singh). The visa applicant confirmed that his sister’s husband is on Facebook and that the review applicant is Facebook friends with his sister’s husband.

    ·     The sister and mother went shopping for a blue sari for the review applicant (this was before the site visit) and they purchased it in consultation with the review applicant and the visa applicant, however it was too heavy to send by post, so the review applicant had to wait to receive it until they met in Bali.

    ·     When they discussed whether or not to have further children they both referred to the review applicant having said that she has had enough children and ‘the factory is closed’.

    ·     The visa applicant had been working at a café in India and he was then requested to start a business in a hotel in a 50/50 partnership. The review applicant discouraged him from doing that because it is not their intention that he stay in India.

    Other consistent evidence

1. The review applicant told the Tribunal that a phone call had been made to the visa applicant’s parents during the wedding ceremony; the visa applicant’s mother gave the same evidence. The review applicant and the visa applicant’s mother said that they are not able to communicate very well because of the language difficulties, but they will say hello. When asked why the father did a will after the site visit, which the Tribunal was also concerned with as it could be construed as the creation of evidence to respond to adverse comments from the Department, it became clear that the reasoning of the father, and parties, was somewhat more innocent. The Tribunal accepts their evidence (each in their own words) that because it did not appear that the Department believed the parties’ commitment, which is genuine, nor did the Department believe that there was sufficient recognition of the commitment by family and friends, the father took steps to show that indeed the commitment was genuine and that there was a recognition by the family of the relationship, by creating his will leaving his assets to his wife and the applicants. A similar explanation was provided for the posting of an announcement in a local Indian newspaper celebrating their son’s wedding anniversary. The Tribunal accepted these explanations.

2. The father and mother both gave evidence that they had given their permission for the wedding to take place, which was inconsistent with the Departmental officers who recorded that the parents had said that the wedding took place without permission. They also gave consistent evidence that at the time of the wedding they did not do a newspaper announcement in India as the couple were not all present in India.

3. The Tribunal accepts that there is a significant amount of documentary and oral evidence supporting the intermingling of funds and that the parties were a couple at time of application and that they continue to be a couple; this is referred to further below. The Tribunal had to weigh this up as against the other concerns that it held.

   Concerns with the site visit report

4. When trying to ascertain who should be believed in relation to what was actually said during the site visit, the Tribunal encountered concerns with the evidence of the visa applicant’s parents as follows:

   ·     The visa applicant’s mother, when asked why there were no photos of her son with his wife and child when the Immigration Department visited, said that this was because they had only moved in a few days prior. However, when the Tribunal asked when they had moved in, the mother said 2016. The Tribunal noted that the site visit took place on 7 September 2017. The mother was unable to give an adequate explanation as to why she had said this, at one point referring to the family having rented for a period beforehand (but this did not explain why she said they had only been living at their home for a few days when apparently there was at least a nine-month period that they had been living there). Another reason she gave for not having the photos up was that she was not strong enough to lift boxes; she did not provide an adequate explanation when the Tribunal noted that her son was living there, and he could have helped her lift boxes. At one stage she said that she was not educated, and the review applicant repeated this. The Tribunal does not find this to be a satisfactory explanation, and considered the mother’s evidence to be adverse in this respect.

   ·     The father said that the Departmental officers went to the neighbours’ house and the neighbours confirmed that the applicants were married. This is inconsistent with the statutory declarations from various neighbours who stated that they were not asked this question.

   ·     The father said that he had told the officials that he had sent some presents to Australia, being child’s clothing, he also sent money for his grandchild’s birthday which was before the site visit. He said this was $306 which was the equivalent of 15,660 Indian rupees and that this was sent on 24 May 2017. The Tribunal asked the father how he knew this so precisely, and asked whether he was reading from something, and he said no, he just knows this, and it was from Thomas Cook. The Tribunal noted that the visa applicant was with his parents in the same house when they were giving evidence and earlier in the hearing documentation had been sent between the applicants relating to this money transfer; although the Tribunal accepts that the money transfer occurred, it considered it doubtful that the father could recall the precise date and the precise amount and conversion, from 3.5 years ago and it considers that he was probably not truthful when he denied having refreshed his memory about this. The Tribunal considers the father’s evidence on these matters to be adverse.

5. Apart from these concerns, the Tribunal has carefully considered the evidence of the visa applicant and other evidence from his parents, as well as the written statements. The site visit report indicates that the visa applicant’s parents/family/neighbours had a limited knowledge of the review applicant and her child with the visa applicant. The Tribunal notes that this is inconsistent with the evidence and written statements given by the visa applicant and his parents. The Tribunal explained at the hearing that it would be of assistance for the agent/applicants to draw to its attention any of the documentary evidence already provided (or available) which could show that there was indeed contact between the visa applicant’s parents/family and the review applicant/child prior to the date of the site visit (7 September 2017), and evidence of the in-laws sending gifts/money to the review applicant/child before the site visit. The Tribunal agreed to delay making its decision.

6. At the hearing the review applicant pointed to the above referred to statement from Thomas Cook showing about $300 being sent from the visa applicant to the review applicant on 24 May 2017 (6 days before the child’s birthday on 1 June 2017) which was said to be a present from the visa applicant’s parents to the child. However, the Tribunal noted that this was not a transfer from the parents’ account to the review applicant, rather the transfer was from the visa applicant’s name to the review applicant’s name, which did not assist in ascertaining whether the assertions drawn from the site report of a lack of recognition/knowledge of the review applicant/their son/their relationship by the visa applicant’s family/neighbours in India, was correct or incorrect.

7. The Tribunal considers that there is however evidence (already provided to the Department amongst many other documents) which undermines the assertions in the site visit report:

   ·     Text messages from 26 December 2016[2] show that the visa applicant’s sister and brother-in-law had sent a Christmas card to the review applicant; the Christmas card was also provided;

   [2] folder 2 provided to the Tribunal by the applicant

   ·     Text messages from 7 January 2017[3] show that the visa applicant, his mother and sister were going shopping to buy the review applicant a sari, made in heavy material, and videos were exchanged to show different examples of the fabric that the review applicant could choose. The visa applicant showed one that his mother and sister had chosen for her, and she said that she liked that one. On the same day, during the same shopping trip, discussions were being held by text about buying clothes for three of the review applicant’s children (including the parties’ child) by the visa applicant, his mother and sister. Later photos were provided of the visa applicant’s mother sewing the review applicant’s jacket’s fabric in February 2017.

   ·     Celebration via Whatsapp photos of the parties’ child’s second birthday on 1 June 2017 involving the parties, the child, the visa applicant’s parents, sister and nephew, and photos of the visa applicant’s family visiting the temple on the child’s birthday.

   ·     Photos of the visa applicant’s parents and nephew with presents bought for them by the parties in Bali in 2016 including the visa applicant’s mother with a fan gifted to her by the review applicant.

   ·     Photo on 15 March 2017 of the parties’ child’s jumper made by the visa applicant’s mother and wearing a suit made by her.

   ·     Photo on 8 January 2017 of the visa applicant’s stepson (Tyrone)’s Punjabi outfit.

   ·     Texts from 2016 between the parties discussing the visa applicant going with his parents to his sister’s place and the review applicant asks him to pass her greetings to everyone.

   ·     Photos in October 2016 of outfits sent from the visa applicant’s parents and the visa applicant to the review applicant’s children.

   ·     Photos taken from video communications between the review applicant in Australia and the visa applicant and his parents and siblings and in-laws in October 2016 and with his cousin in June 2017 in India.

   ·     Social media comments and likes were provided post hearing showing interaction with the visa applicant’s siblings and in-laws.

   ·     A text discussion in February 2017 between the parties to the effect that the visa applicant’s mother was in hospital with high blood pressure and the review applicant expressed concerns and said she would talk to the mother the following day.

   [3] folder 2 provided to the Tribunal by the applicant

8. The Tribunal considers that the evidence of interactions between the visa applicant and his family members with the review applicant and her children including the parties’ child, prior to the site visit, indicates that the visa applicant’s parents and family members were aware of, and accepted, the relationship between the parties, and their son. This is inconsistent with the site visit report and the Tribunal does not place weight on the site report for these reasons.

9. While the Tribunal does not place great weight upon the oral evidence of the visa applicant’s parents due to the concerns with their evidence referred to above, it does note that they also said that they supported the relationship and want their son to be with their daughter-in-law and grandchild in Australia; the Tribunal accepts this. The Tribunal considers that the evidence of the interactions referred to above supports the existence of a genuine and ongoing relationship which is recognised by the visa applicant’s family members (and was so recognised prior to the site visit, and prior to the wedding).

   Concerns arising from the visa applicant’s past immigration history

10. The Tribunal had concerns that the visa applicant’s intention has been to stay in Australia, and that he was prepared to take any steps he considered necessary to fulfil this intention. Even though the Tribunal considers this is probably likely for the reasons discussed below, this does not mean that the current relationship is not genuine and ongoing.

11. The Tribunal noted that PRISMS records indicated that all he had ever studied in Australia was an English course, and then although he enrolled in an Advanced Diploma of Hospitality Management, his CoE was cancelled on 22 September 2008 (two months after his arrival) because he had not paid his fees. The Tribunal was concerned that this indicated that he had no intention of genuinely studying for a tertiary qualification when he came to Australia. It was concerned that the PRISMS records were inconsistent with his Form 80 where he stated that his reason for being in Australia until 5 October 2011 was to study.

12. His lack of studies according to PRISMS was particularly relevant because his student visa was due to cease on 2 August 2010 and if it was the case that he had been in Australia for two years without studying, it seemed likely that his student visa would not have been renewed.

13. He then, as noted above, applied for a partner visa based on his first marriage which occurred in May 2010, three months before his visa was due to expire. This application was refused by the delegate and then the MRT held a hearing in April 2013 (where it put its concerns to the visa applicant) and then on 4 October 2013 the MRT found that the relationship was not genuine and the delegate’s decision was affirmed.

14. In the meantime, the visa applicant had started his relationship with the review applicant who was an Australian citizen. The Tribunal put to the visa applicant at the current hearing its concern that he may have been applying for visas to be in Australia for non-genuine reasons.

15. The visa applicant claimed in his oral evidence that, contrary to PRISMS, he had studied hospitality management for over one year and then he stopped because he met his first wife. The Tribunal gave the visa applicant time after the first hearing to produce evidence in this regard, noting the contents of PRISMS. The post hearing response referred further to the visa applicant’s study in Australia after his English course. It was noted that he had been enrolled with KAPS Institute of Management who had its registration cancelled in 2015 and thus the visa applicant was not able to contact the provider to obtain records of his study. He himself has lost the paper records of his study. His old CoE showing a prepaid course fee of $4,738 was provided. The visa applicant could not provide any evidence of actual study in his Advanced Diploma course.

16. The Tribunal was also concerned with text messages (produced by the applicants) which indicated that in the past the visa applicant had not held genuine intentions when applying for visas. In this regard the Tribunal wrote to the visa applicant noting the following:

    The Tribunal refers to the attached extract of text message exchanges between yourself and your husband[4] dated 18/10/2016. The Tribunal considers that the information in this extract is relevant to the concerns discussed yesterday at hearing, namely whether or not your husband’s previous visa applications (student visa application and partner visa application with his first wife) were genuinely made. In particular, the extract states:

    You: we have to except (sic) our mistakes and use them to make us better. What happened in the past is what’s got us here. It may sound wrong but the decisions they made was based on the choices you made babe. Now we’re trying to fix that so we don’t go down that path again.

    Visa applicant: but this time I do everything right. I’m not lying this time.

    You: yes babe but they needed more to convince them about that…

    You: did you ever read the story about the boy who cried wolf… Even though it wasn’t intentional to them you knew what you were doing.

    Visa applicant: yes babe.

    You: so now you are being totally honest we have to prove to them that our marriage is for real.

    Please provide the Tribunal with any additional information including any statement you or the visa applicant would like to make about these text messages and why you consider that this application for the visa applicant to be granted a visa to come to Australia as your partner is different to his previous applications and is not merely a pathway to come to Australia.

    [4] Folder 4 provided to the Tribunal

17. The post hearing responses explain the conversation as not relating to the visa applicant’s past visa applications, but instead relating to choices that he had made in hiring his past representatives.

18. The Tribunal did not find the explanations as to the visa applicant’s past visa applications to be persuasive, although it does not consider it appropriate at this time to make a finding as to whether he obtained a student visa without intending to study, and whether he sought his first partner visa while not in a genuine relationship. This is because, even if this was the case with these past applications, this does not outweigh the evidence before the Tribunal as to the current application, upon which evidence the Tribunal accepts that there was a genuine committed relationship between the parties at the time of application and that this remains at the time of decision.

    Factors under r.1.15A(3)

19. The Tribunal has also considered the relevant factors in r.1.15A(3)(a), (b), (c) and (d), as follows:

20. 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. The review applicant said that while the visa applicant was in Australia they had a joint account; her salary was going into her account and his salary went to the joint account. The bank closed the joint account because his salary stopped going in. She said that he sends her money when he can to assist for example with their son’s fees. He did not work for some time in India as they were expecting he would come back to Australia. He then had to start working when the refusal came. The visa applicant declared that all of his property in India and superannuation in Australia shall be left to his wife and son in equal shares if he dies. In the near future, they intend to purchase a house and start a business and his wife and son will have equal rights to it. The Tribunal accepts that while the visa applicant is in India it is difficult for their finances to be pooled; the Tribunal accepts however that they intend to pool their resources when the visa applicant is living in Australia.

21. Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework. In this regard the Tribunal notes that a further letter from the parties’ child’s childcare centre was produced to the Tribunal which confirmed the visa applicant’s attendance and significant involvement with his wife in his child’s care at the childcare centre, and the director of the centre was aware of his involvement in the pickup and drop off for his stepchildren. The Tribunal accepts the evidence received of sharing of household duties when the parties lived together, including in relation to their child.

22. Social aspects of the relationship – including whether parties represent themselves to other people as being married to 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 Tribunal accepts the evidence of the statutory declarations, the witnesses and the WhatsApp/social media evidence that the parties have for many years held themselves out to be a couple.

23. 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 Tribunal accepts that the parties have had a long-term relationship and that there is a child of that relationship. It accepts that they have seen each other on two visits since he left Australia to lodge the application. The Tribunal accepts that the review applicant has four children to look after and none of the children’s fathers are assisting her. It accepts that she has a heavy burden in caring for the four children, and that the visa applicant intends to be with her in Australia and to be part of the family. The Tribunal accepts that the parties are committed to each other.

24. The Tribunal accepts that the parties have a mutual commitment to a shared life to the exclusion of others; genuine and continuing relationship; and live together/not separately and apart on a permanent basis.

25. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) were met at the time the visa application was made, and at the time of this decision.

26. Therefore the visa applicant meets cl.309.211 and cl.309.221.

27. 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 of Schedule 2 to the Regulations; and

   ·cl.309.221 of Schedule 2 to the Regulations.

   Christine Cody
   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).