VIKRANT (Migration)

[2018] AATA 4540

VIKRANT (Migration) [2018] AATA 4540 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr VIKRANT VIKRANT

CASE NUMBER:  1618991

DIBP REFERENCES:  BCC2016/4189903; CLF2012/74030

MEMBER:Rosa Gagliardi

DATE:12 September 2018

PLACE OF DECISION:  Melbourne

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

·cl.801.211 of Schedule 2 to the Regulations; and

·cl.801.221 of Schedule 2 to the Regulations.

Statement made on 12 September 2018 at 10:33am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) – Subclass 801 (Partner) visa – relationship for the sole purpose of achieving a migration outcome – parties met when both were international students – long standing relationship – sponsor’s pay deposited into joint bank account – traditional marriage ceremony witnessed by family – statements from third parties – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A Schedule 2 cls 820.211, 820.221

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 Immigration on 25 October 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 4 April 2012 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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. Relevantly to this matter the primary criteria include cl.801.211 and cl801.221.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.211 because he or she was not satisfied that the applicant and the sponsor were in a genuine and continuing spousal relationship.  Furthermore, the parties had submitted limited continuing evidence of a long-standing relationship.

4. The applicant appeared before the Tribunal on 11 September 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his putative spouse,  
   Ms Harpreet Kaur.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DEFACTO (cl.801.221(2))

   Whether the parties are in a spouse or de facto relationship

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

7. ‘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 sponsor’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.

   Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The parties have submitted a marriage certificate indicating they were married in Australia on 4 March 2013. The sponsor’s divorce from her previous husband was finalised on 6 March 2012 and relevant evidence has been submitted and sighted by the Tribunal. 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).

   Background

9. The evidence about how and when the parties met has been consistent over several assessments by the Department and the Tribunal. They met in March 2010 at a common friend’s house party when the parties were students.  At hearing both parties stated that they connected easily because they both had fathers who had been in the air force and their families had had peripatetic lives.  They understood each other and had similar backgrounds.  At the time the sponsor had separated from her then husband even though she was still married.  At hearing the sponsor recounted how the marriage failed because she and her former husband were not compatible.  Furthermore, her former spouse’s mother came to live with them and was instrumental in eroding her self-confidence by telling her that she was not good enough for her son.  Both the applicant and sponsor gave consistent advice at hearing about how the sponsor had had an emotionally abusive relationship which led to the separation and which also resulted in the sponsor having an aggravated mental health issue with depression.  The sponsor stated that her former spouse was not an Australian citizen at the time – they were both students.

10. In meeting the applicant and getting to know him better, the sponsor grew closer to him and by 27 September 2010 the applicant had proposed.  At hearing the Tribunal probed the parties as to whether the applicant may have entered the relationship for the sole purpose of achieving a migration outcome given that he had failed at pursuing his studies in Australia.  His lengthy immigration history tended to show that he had also pursued Ministerial Intervention and it might appear that he attempted to remain in Australia by entering the relationship when his options for remaining in Australia had narrowed.   Both parties gave evidence, however, that at the time they met, the sponsor was not even an Australian citizen.  The reason the applicant had attempted to pursue revisitation of his student visa refusal was because he had three months to complete his course and considered that he had almost attained his goal to complete his studies.  After having sought review and failing at the Tribunal, he thought that the Minister at the time might understand his circumstances.  When the applicant met the sponsor, he was appealing the Tribunal’s decision through the courts.

11. In light of the parties’ consistent evidence and the significant credible evidence they have submitted since the Departmental refusal, the Tribunal places no adverse weight on the timing of the parties’ meeting, particularly as the sponsor was only a student at the time they met and had no capacity to sponsor him in any event.

12. In terms of the fact that the sponsor was officially married when she met the applicant, the Tribunal does not place adverse weight on this matter.  The Tribunal found the parties’ evidence about the sponsor’s former marriage particularly convincing.

13. The parties have now been married some five years and the Tribunal has no evidence that since they committed to one another in September 2010 (which the Tribunal accepts) the parties have not continued to live together as either de facto partners or spouses.  The couple married in March 2013 and from this perspective, the relationship is a continuing and long-standing one. 

14. In March 2017, the parties held a traditional wedding celebration at which the sponsor’s parents and siblings from overseas attended as did the parents of the applicant.  This traditional ceremony was seen by both parties as being important to honour their culture and to enable their parents to partake in the formal recognition of the marriage. 

    Are the other requirements for a spousal relationship met?

    Financial aspects of the relationship

15. The applicant is on a Bridging visa and is not able to work.  His movement records show that he has been on such a Bridging visa for a lengthy period.  The sponsor completed her accounting studies in Australia and was awarded a degree after which time she was able to attain permanent residency.  She has been working several jobs for some time now – one with a company as an accountant as well as in a pub.  The Tribunal has sighted evidence of their joint bank account into which the sponsor’s pay is deposited and which provides the basis for the parties’ living expenses.

16. The sponsor has purchased a home for them to live in and they have lived at that current property for a year. The applicant stated that he was not on the title due to his visa status but that when he would be able to work, he would contribute to the mortgage.  The Tribunal referred to amounts of money paid to the applicant by a third person who the applicant clarified was a friend who had made a loan to him and the sponsor, as they had been, on that occasion, in a difficult position financially.  Otherwise, the work of the sponsor and financial support from the applicant’s parents assisted them both to live as spouses.

17. The Tribunal finds that the applicant’s and the sponsor’s financial arrangements are not inconsistent with their personal circumstances and do not detract from them being in a genuine and continuing spousal relationship.

    Nature of the household

18. The applicant provided the Tribunal with a plotted history of where the parties have lived together and the joint correspondence appears to be consistent with this history.  The applicant at hearing stated that while he was at home he was investigating his options for when he might be granted a visa to work as he was frustrated that he was not the provider for the household.  He also undertook work around the house so that the sponsor did not have to bear household burdens in addition to the work she did outside the home. 

19. The Tribunal has sighted a significant volume of invoices and other utility accounts showing that the parties have had a shared household for a lengthy period.  Lease agreements have also been submitted. The Tribunal understands that this material was not available to the Department at the time of application to assist make a favourable decision. 

20. The Tribunal also asked precise questions about how the parties had spent their previous evening prior to hearing and the parties gave consistent answers, discussing the meal they had and their activities.  Their recollections of their activities both together and separately on the weekend were also consistent in minute detail, leading the Tribunal to be satisfied that the parties share a common household and have done so since they committed to their relationship in 2010.

    Social aspects of the relationship

21. The Tribunal has sighted a considerable amount of written evidence by third parties that they are in a genuine and continuing spousal relationship.  These statements give the impression that the parties are well-known to the writers as a couple in a long-standing relationship. The Tribunal places significant weight on the fact that the parties’ families travelled from India to attend their traditional ceremony held in Australia.  The Tribunal has sighted evidence of the presence of the parties’ families in Australia by way of photographic material as well as through evidence of flight details.  The parties stated that the traditional ceremony was seen as being important culturally and importantly to enable their parents to partake in the formal recognition of the marriage.  The traditional ceremony was only held in Australia in 2017, even though the parties had intended to travel to India together earlier to have their extended families and others in the community witness the formalisation of their relationship.  As they faced further delays in the resolution of the applicant’s visa status, they decided they would not wait any longer and decided to have the ceremony in Australia.  The applicant has not travelled and has not wanted to travel outside Australia since meeting the applicant because, as he put it, he was afraid that if he did, he would not be permitted to return to be with the sponsor.

22. Other compelling evidence has been submitted that the parties have presented themselves in an official capacity as being in a continuing and genuine spousal relationship, and for a lengthy period.  For example, the sponsor has submitted evidence that for the financial year ending in 2011, she declared the applicant as her “spouse” in her tax return.

23. In addition, the sponsor’s psychologist reflected in his/her notes in 2016 that the sponsor’s depression and anxiety had worsened because she was concerned about whether the applicant, her “husband”,  would be able to remain in Australia, indicating that the applicant was referring to the applicant as her spouse in communication with her care givers.

24. The Tribunal has also had regard to the numerous photos submitted of the parties with parents and family members in Australia in 2017 and others in social situations, including as a couple.  The Tribunal finds the photos are spontaneous reflections of milestones in the parties’ lives and do not present indicators that they have been contrived for the purpose of the review. 

    Nature of persons’ commitment to each other

25. At hearing the parties spoke about their plans to pay their home loan together.  The applicant was particularly concerned that he should have a job as he wanted to provide for a family and he stated that this was why he and the sponsor had not yet had children.  The applicant did state at hearing that they had now decided to try to have a child.  Similarly the sponsor stated that they had had enough of postponing their future and had decided to try for a family.

26. The Tribunal considers that the sponsor was sincere in her statements that the applicant has been a major source of support to her in Australia as she has little family here, particularly during periods when her mental health has suffered.  She also spoke about the role the applicant had played in assisting with the recovery of her self-esteem. 

27. In turn the Tribunal accepts the sponsor’s statements that when she returned to India to visit family in 2014 she met with the applicant’s family to introduce herself and to get to know them.  Both parties also spoke consistently about how the sponsor had also travelled briefly to India in 2017 to purchase traditional dress for their traditional ceremony in Australia.  The sponsor stated that on this occasion she also visited her parents-in-law. 

28. The Tribunal has been persuaded that the parties share a particular bond given their common background as children of military personnel.  At hearing the parties confirmed that their parents had now become friends as a result, and visited each other in India.  Photos taken in Australia confirm that the applicant’s and sponsor’s parents are known to each other as they have been depicted together in tourist locations and in home settings.

29. From the evidence the Tribunal is satisfied that the parties see the relationship as long-term and that they have a mutual commitment to a shared life to the exclusion of others and that they do not live separately and apart on a permanent basis.

30. The sponsor stated at hearing that she was conscious that they had not been good at getting their “paperwork” together initially.  Had the volume of material been presented to the Department at first instance a different result may have been reached at the primary assessment stage.

31. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.221(2)(c).

32. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 801 visa.

    DECISION

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

    ·cl.801.211 of Schedule 2 to the Regulations; and

    ·cl.801.221 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    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).