Vincent (Migration)

Vincent (Migration) [2019] AATA 3711 (17 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs Paige Karen Vincent
VISA APPLICANT:  Mr Shamsher Singh
CASE NUMBER:  1829734
DIBP REFERENCE(S):  BCC2016/2474731
MEMBER:Steven Griffiths
DATE:17 June 2019
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations

Statement made on 17 June 2019 at 4:34pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – genuine spousal relationship – marriage certificate – mutual commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), Schedule 2 cls 309.211, 309.221

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 6 September 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant, Mr. Shamsher Singh, applied for the visa on 19 July 2016 on the basis of his relationship with his sponsor, Mrs Paige Karen Vincent. 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied that the visa applicant was the spouse, as defined in s.5F at the Act, of the sponsor.
The sponsor appeared before the Tribunal on 11 June 2019 to give evidence and respond to questions. She provided the Tribunal with a copy of the delegates’ decision record. The Tribunal also received oral evidence from the visa applicant by telephone from India, two friends of the sponsor and a cousin of the visa applicant.
The sponsor was represented by her registered migration agent.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Immigration and Border Protection file and the Tribunal File, including additional information provided to the Tribunal and evidence from the Tribunal hearing.
ISSUE
The issue is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.
BACKGROUND ON THE EVIDENCE
Mrs. Vincent was born in New Zealand in 1992. Her parents, born 1951 and 1961, moved to Australia and she followed in April 2013. She has a sister who lives in New Zealand.
Mr. Singh was born in Bathe Bhaini Tarn Taran, India in 1990. His father is deceased and his mother, born 1965, and one brother, born 1993, live in India.
INFORMATION TO THE TRIBUNAL
Since the Department made a decision the sponsor has, through her Migration Agent, provided further information to the Tribunal including:-
Employment references from Pak ‘n’ Save in New Zealand
Photographs taken on the day they became engaged
Photographs taken on their Wedding Day
Photographs taken during their Honeymoon / visit to India
Roommate Agreement
Electronic contact records
Sponsor travel tickets to India from February 2019 to May 2019
Sponsor cancelled travel ticket to Hawaii to attend Tribunal hearing
Statements from friends and family accompanied with identification
Travel tickets and photographs of time spent together
Photographs from time spent in India and Australia
Marriage Certificate
Statement from sponsor
New Relationship Statement from sponsor and visa applicant
Bank statements corresponding with visa applicant travel to Australia and recent bank statements
New Indian joint bank account
Money Transfers from 2019 of $ 3000 NZ and $ 1770 Australian from the sponsor.
Is the visa applicant the spouse of an eligible citizen?
Clause 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. The Tribunal was provided with evidence, which it accepts, that the sponsor is an Australian permanent resident legitimately living in Australia.
Whether the parties are in a spouse or de facto relationship
‘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?
At the time the visa application was made the visa applicant provided evidence of being married to the sponsor in India as evidence of their marriage on 26 October 2015.
The Tribunal has regard to the document and finds that the parties were married to each other at the time of the visa applicant and the decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered are:-
(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 expense
The Tribunal accepts that at the time of the visa application and this decision, no real estate of other major assets are held by the parties.
The Tribunal accepts that the time of the visa application and this decision, no joint liabilities are held by the parties.
The Tribunal accepts that at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.
The Tribunal acknowledges that the visa applicant spent one year in Australia from September 2016 living with the sponsor, being totally dependent financially upon her and that during this period the sponsor deposited funds in to a Commonwealth Bank account operated in joint names.
The parties gave oral independence, confirmed independently and which the Tribunal accepts, of the sponsor providing funds through the relationship for the use of the visa applicant when he was living in India via a bank account of his brother.
The Tribunal accepts the evidence from the parties of an account with an Indian bank, in joint names and opened in early 2019, that the sponsor has paid funds in to for use by the visa applicant at any time and by the parties when the sponsor is in India.
The parties gave oral evidence, confirmed independently which the Tribunal accepts, of using these funds for the purchase of an air-conditioner and bed mattress for the home of the visa applicant prior to a recent trip by the sponsor, assisting with medical expenses of the visa applicants mother and repairs to his car.
The parties provided evidence, which the Tribunal accepts, of the sponsor nominating the visa applicant to be her 100% beneficiary on her superannuation account.
The sponsor was until early 2019 working as a remedial masseur.
The visa applicant works at his family farm growing rice and until early 2019 worked for three months at a call centre.
The Tribunal accepts that the parties live in different countries and do not share day-to-day household expenses, but gives this little weight as the Tribunal acknowledges the financial support provided by the sponsor to the visa applicant.
Nature of the household aspects that must be considered are:-
(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
The Tribunal accepts the evidence of the parties that they do not have children and thus no responsibility for the care and support of children, but have cared for the children of the cousin of the visa applicant several times when the visa applicant was in Australia from September 2016 for 12 months, with this evidence confirmed independently by the cousin.
The Tribunal accepts the evidence provided that the parties lived together for 6 months from October 2012, in New Zealand, and 13 months from September 2016, in Australia during which they maintained a household.
The parties gave oral evidence, which the Tribunal accepts, of the various household functions each had responsibility for and the activities shared, while living together.
For the 13 months in Australia from September 2016 the parties shared the home with the property owner, who gave oral evidence, which is accepted by the Tribunal, of the household roles undertaken by the visa applicant and those shared by the parties.
The Tribunal accepts the evidence provided that the sponsor has been to India in October 2015, December 2018 and February 2019 for a total of 138 days and that during this time she has been with the visa applicant every day, staying at a hotel for 4 days, then with an Aunt of the visa applicant for 12 days and in family home of the visa applicant for 122 days.
The Tribunal accepts that the parties, for much of their time in a relationship, have lived in different countries and do not have a full-time household, but gives this little weight as the Tribunal recognises they have spent approximately 710 days living together since the relationship started in November 2012.
Social aspects of the relationship that must be considered are:-
(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
The Tribunal accepts the oral evidence provided by 2 witnesses that the parties at every opportunity have always represented themselves to other people as being married, that they know both parties well and consider them to be ideal for each other, in love and committed to doing all they can to be able to live together and create a family.
One witness gave oral evidence, which the Tribunal accepts, as being the best friend of the sponsor and owner of the home that the parties will live in if the visa applicant is able to live in Australia, noting that she wants them to continue living at the house when children arrive and will look to build an extension on the house to accommodate them.
This witness also confirmed, which the parties had previously stated independently, of the financial support she has provided to assist the parties. The Tribunal accepts this evidence.
The Tribunal accepts the 16 Affidavits provided by residents of the village in India of the visa applicant that they are aware of the marriage between the parties, with the majority knowing the name of the sponsor.
The parties gave evidence, which the Tribunal accepts, that they have only a few close friends outside of family members in Australia and India while providing photographic evidence of times spent socializing.
The Tribunal was provided with evidence, which it accepts, of electronic messages averaging several hundred per day between the parties over long periods from 2017 to late 2018.
The Tribunal determines that within the limits of separation and communication, the parties are in daily contact with each other, have a complete knowledge of that the other does every day and have a strong social connection.
Nature of the commitment to each other areas that must be considered are:-
(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.
The parties provided evidence, which the Tribunal accepts, that they first met in mid-2012 and committed to a relationship from October 2012 and have lived together for approximately 710 days since that time in New Zealand, Australia and India.
The Tribunal accepts the oral evidence of the parties that for the most recent trip to India of the sponsor, lasting three months, the parties gave up their jobs to be able to spend that length of time together.
The parties gave oral evidence, accepted by the Tribunal, of plans for their future together in Australia, the study needs of both and the job opportunities they will pursue.
The Tribunal accepts the oral evidence of the visa applicant that he desperately wants to be with the sponsor as she is kind, caring, loves him, that their wedding was the happiest day of his life and he wants to care for her long term.
The Tribunal accepts the oral evidence of the sponsor that she has found the person she loves, her family accepts and supports the relationship and marriage, that she has given up much to be together as much as possible and desires to be the wife of the visa applicant for the rest of her life.
The Tribunal determines that the parties, at the time of the visa application and this decision, have had and continue to have an ongoing commitment to each other.
Other circumstances of the relationship
The sponsor gave oral evidence that her father had worked away from the family residence from when she was 12, so she understood that separation sometimes needs to happen, but she is now desperate to live full-time with her husband.
The Tribunal considered all the evidence about the circumstances of the parties and determines that the evidence supports a finding that the parties have a mutual commitment to a shared life together as a married couple to exclusion of all other, with the relationship being genuine and continuing.
The Tribunal accepts that the parties have been in a relationship since late October 2012, engaged and married in October 2015 and do not live separately and apart on a permanent basis.
On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and this decision.
Therefore the visa applicant meets cl.309.211 and cl.309.221.
Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.
DECISION
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations
Steven Griffiths
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).

[2019] AATA 3711

17 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice