White (Migration)

[2024] AATA 3868

White (Migration) [2024] AATA 3868 (19 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Laarni Palar White

VISA APPLICANT:  Mr Nirmal Singh Sandhu

REPRESENTATIVE:  Mr Joseph Chan

CASE NUMBER:  2103796

DIBP REFERENCE(S):  BCC2019/2986564

MEMBER:Tegen Downes

DATE:19 September 2024

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl 309.211(2)(a) of Schedule 2 to the Regulations

Statement made on 19 September 2024 at 12:11pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – whether the parties have provided false and misleading information – couple represented themselves to other people as being in a married relationship – nature of the commitment is indicative of a married relationship – parties validly married – parties are in a genuine spousal relationship – decision under review remitted       

LEGISLATION
Migration Act 1958, ss 5, 65, 375
Migration Regulations 1994, rr 5F, 1.15, Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 January 2021 to refuse to grant the visa applicant (the applicant) a Partner (Provisional) (Class UF) visa under section 65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 June 2019 on the basis of his relationship with his sponsor, the review applicant (the sponsor). 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).

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy

   
   

   cl 309.211(2) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant was the ‘spouse’ of the sponsor, within the meaning of the Act.

4. The sponsor appeared before the Tribunal on 27 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence via Microsoft Teams from the applicant and the sponsor’s sister.

5. The sponsor was represented in relation to the review. The material submitted by the representative did not comply with Tribunal’s requirements and expectations set out in the Migration and Refugee Division Practice Direction. This adversely affected the Tribunal’s ability to carry out its functions in accordance with its objects, as set out in section 2A of the Administrative Appeals Tribunal Act 1975 (Cth).

6. The file provided to the Tribunal by the department includes a certificate and notification regarding the disclose of certain information to the Tribunal under s375A of the Act. It certifies that disclosure of the material covered by the certificate would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would like to prejudice the effectiveness of those methods.

7. I notified the sponsor of the existence of the certificate, gave them a copy of it and offered them the opportunity to make submissions on the validity of the certificate. I have considered the certificate and find it is a valid certificate, that it is signed and a valid public interest reason is cited.

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

   ISSUES AND LAW

9. This review application relates to an offshore application for a provisional partner visa to enable the applicant to come to Australia on a temporary basis.

10. The issue in this review application is whether, at the time the visa application was made, the applicant was the spouse of an Australian citizen, for the purposes of cl 309.211(2)(a) of Schedule 2 to the Regulations.

11. ‘Spouse’ is defined in s 5F of the Act, which 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).

12. In forming an opinion about these matters, the Tribunal must have regard to all the circumstances of the relationship, including the financial and social aspects of the relationship, the nature of the applicant and sponsor’s household and their commitments to each other, as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

13. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after the visa application is relevant if it tends logically to show the existence or non-existence of facts relevant to the issue to be determined: Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Background

14. The applicant is a 39-year-old man from India. He is twice divorced. He claims to be in a married relationship with the sponsor, a 63-year-old Australian citizen who was born in the Philippines. The sponsor is widowed with two adult children.

15. According to the visa application, the applicant first came to Australia in December 2008 as a dependent to his first wife. His visa was cancelled in 2010 after their relationship ended, but the applicant overstayed his visa and remained in Australia unlawfully.

16. The applicant applied for an onshore partner visa in April 2012, sponsored by his second wife. This visa was refused on Schedule 3 criteria grounds. He applied to the Tribunal for review of that decision, but the Tribunal (differently constituted) affirmed the department’s decision in September 2015.

17. The applicant departed Australia in January 2016. He then applied for an offshore partner visa sponsored by his second wife on 19 May 2016. The department refused to grant that visa.

18. The applicant and his second wife were divorced on 18 November 2018.

19. In the present visa application, the couple claim to have met on 24 December 2011 and to have married on 1 February 2019. The visa application nominates the wedding date as the date the applicant and the sponsor committed to a shared life together to the exclusion of all others, whereas the sponsorship form nominates 15 June 2018 as the date of commitment. It is notable that this date is shortly after the applicant’s previous offshore partner visa application (sponsored by his second wife) was refused, that it is before the applicant and his second wife divorced, and that it is four months after the sponsor’s first husband passed away.

20. The applicant and the sponsor both gave oral evidence to the effect that they first met on
    24 December 2011 at Snap Fitness. The sponsor gave evidence to the effect that she was doing her morning workout and the applicant was also there doing his workout. I note that this is inconsistent with the sponsorship form submitted with the visa application, wherein the sponsor declared that the couple first met at Anytime Fitness Gym in Springwood.

21. The applicant and the sponsor both gave evidence to the effect that their relationship started as friends and that it later became romantic. However, their evidence as to when this transition occurred was inconsistent and evasive. The applicant was also evasive as to when their relationship became mutually exclusive.

22. Initially, the sponsor claimed that their relationship did not become romantic until 2016, after the applicant had returned to India. However, she changed her evidence numerous times during the hearing. Following the hearing, the sponsor submitted a statutory declaration to the Tribunal stating, among other things:

    7.I became friends with Nirmal on Christmas Eve, 24 December 2011 when we were side by side on the treadmills at the gym.

    8.I had seen Nirmal prior to this earlier in the year with his partner Brenda at the Colmslie Hotel, however I only saw them from a distance and never approached them.

    9.It was then I was aware that Brenda and Nirmal appeared to be a couple. I knew Brenda as I worked with her.

    10.Nirmal and I had seen each other around the gym, but we actually met in December 2011. From our first interaction, we instantly got along, and could talk openly and honestly about everything and we had fun together.

    …

    12.Our first sexual encounter was on Christmas Eve in 2011, we saw each other a few times after that, and then around a month later we became very close, where we started having intimate meetings after the gym each week.

    13.I confirm that we were having a consenting sexual affair whilst I was married, and Nirmal was with his ex-wife Brenda.

    14.Our relationship was casual until 2015 when we committed to each other.

23. That the applicant and the sponsor were in a committed relationship with each other from 2015 is consistent with other evidence submitted to the department, including photographs of the couple together that are dated 2015, a statutory declaration wherein the declarant referred to the couple as having been in a relationship since 2015, and text messages between the couple saying ‘I love you’ from February 2016. Accordingly, I accept the version of events set out in the sponsor’s post-hearing statutory declaration as true.

24. Unfortunately for the applicant and his credibility, this evidence and the timeline of his relationship with the sponsor suggest that his two visa applications sponsored by his second wife were disingenuous. It is noted that the onshore application was made after the applicant started his ‘affair’ with the sponsor, and that the offshore application was after the applicant and the sponsor were in a committed relationship.

25. It is, however, not only the applicant’s credibility that is marred. Curiously, when the applicant sought review of the department’s decision to refuse his onshore application, the sponsor provided a statutory declaration to the Tribunal attesting to the genuineness of the applicant and his second wife’s relationship. The statutory declaration signed 17 September 2015 provides:

    I know the applicant through his partner. I met the applicant for the first time in March 2011 at Colmslie Hotel when he was with his partner Brenda. I met Brenda in 2005 at my work as she was an employee at Ingham’s Chicken where I was a training officer. After they got married, I also shared house with the couple at Blackwood Road for about one and half years. We were in contact with each other on a daily basis when we lived together and now I am still in contact with Brenda on a daily basis as we work together and I also catch up with Brenda and the applicant for dinner ect [sic] once a month.

    …

    I believe their relationship is genuine and continuing because I always meet up with Brenda at my work and she is seen to be always in contact and love with the applicant. I visit them about once a month and see the applicant does all the housework (cleaning, washing) and even cooking when the partner is working. They both love each others. The applicant is not allowed to work and Brenda is supporting her husband fully. Both of them go for religious dance activities where the applicant performs cultural dances and Brenda supports him fully by attending and cheering him. They go to their relationship prayers together and always are shopping and integrating into the society as husband and a wife.

    …

    I strongly believe the couple are in a genuine and lasting relationship as they both can’t stay without each others and I have attended their wedding anniversaries as well. They are planning to go to India for a holiday and to meet the applicant’s mum and family but because the applicant is not allowed to work now, I have been advised they will go once they earn and save enough money.

26. It is apparent from the decision record in relation to the visa application that is the subject of this review that the delegate did not believe the relationship between the applicant and the sponsor was genuine, at least partially because of the apparent overlap in the applicant’s relationships with his second and third wives, and his attempts to obtain visas sponsored by his second wife, while clearly in some form of relationship with his third wife.

27. However, while the applicant’s apparent lack of integrity when it comes to visa applications and visa compliance is relevant background, it does not necessarily go directly to the question to be determined by this Tribunal as to whether the applicant and the sponsor were in a genuine relationship at the time the visa application that is the subject of this review application was made on 12 June 2019. 

28. What is relevant to this visa application is the change to the narrative as to how and when the applicant and the sponsor met, and when they committed to a shared life together to the exclusion of all others. Critically:

    a.The sponsor’s statutory declaration dated 17 September 2015 states to the effect that they met in March 2011 at the Colmslie Hotel through the applicant’s second wife. In the present application, the couple claim to have met in December 2011 at the gym.

    b.In the present application, the sponsor nominated 15 June 2018 as the date of commitment whereas the applicant nominated 1 February 2019. The sponsor now claims that they were in a committed relationship from 2015, which is consistent with other evidence before the Tribunal. There is no credible evidence before the Tribunal as to when the relationship became mutually exclusive.

29. I did not ask to the parties to explain their reasons for changing their narrative. However, I consider that there is a real question as to whether the parties have provided false and misleading information in relation to the present visa application, which is relevant to whether the applicant satisfies Public Interest Criterion 4020.

30. While the parties have not had the opportunity to comment on this issue, it occurs to the Tribunal that the parties may have deliberately changed their narrative so as to try to give the impression that their relationship was separate from the applicant’s relationship with his second wife, so as to not impugn that relationship and the related visa-applications.

31. On the evidence before me, the most likely version of events is that: the applicant’s relationship with his second wife was not genuine and was contrived for visa-related purposes; the applicant and the sponsor were in a mutually exclusive and committed relationship from 2015; the applicant and the sponsor provided false and misleading information in relation to the visa applications sponsored by the applicant’s second wife in order to facilitate the applicant obtaining Australian residency; the applicant and the sponsor provided false and misleading information in relation to the present visa application so as not to expose the false and misleading information that they perpetuated in relation to the two visa applications sponsored by the applicant’s second wife.

    Are the parties validly married?

32. The couple submitted a translated marriage certificate issued under the Punjab Compulsory Registration of Marriage Act 2012 certifying that they were married on 1 March 2019.

33. Accordingly, pursuant to Part VA of the Marriage Act 1961 (Cth) and s 12 of the Act, in the absence of any evidence to the contrary, I am satisfied that the couple 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 married relationship met?

    Financial aspects of the relationship

34. At the time of application, the couple do not claim to have had any joint assets or joint liabilities, to have owed any legal obligations to the other party, to have pooled their financial resources or to have shared day-to-day household expenses. I make findings accordingly.

35. I find that, at the time of application, the financial aspects of the relationship were not indicative of a married relationship, as defined in the Act. However, I give this little weight in my overall assessment of the relationship given the parties live in different countries.

    Nature of the household

36. At the time of application, the couple do not claim to live together, to share housework or share joint responsibility for the care and support of any children. I make findings accordingly.

37. I find that, at the time of application, the nature of the household is not indicative of a married relationship, as defined in the Act. However, I give this little weight in my overall assessment of the relationship given the parties live in different countries.

    Social aspects of the relationship

38. There is compelling evidence before the Tribunal regarding the social aspects of the relationship: including photographs of the couple together and with friends and family over the course of their relationship; travel-related documentation; statements and statutory declarations from friends, family and acquaintances; and social media records.

39. This evidence, together with the oral evidence provided, is sufficient to satisfy me that, at the time of application, the couple represented themselves to other people as being in a married relationship, that the couple’s family, friends and acquaintances believed the relationship between the couple to be genuine and continuing and that the couple planned and undertook joint social activities.

    Nature of persons’ commitment to each other

40. At the time of application, the couple had been married for four months but had been in a relationship for four years. They had only lived together briefly, due to the applicant and the sponsor residing in different countries.

41. Having regard to all of the evidence before the Tribunal, including the oral evidence provided and documented phone records, messages, travel records, evidence of funds transfers, I am satisfied that, at the time of application, the applicant and the sponsor drew companionship and emotional support from each other commensurate with a married relationship and that they saw the relationship as long term. I find that, at the time of application, the nature of the commitment is indicative of a married relationship, as defined in the Act.

    Conclusion

42. Having regard to the findings set out above, I am satisfied that, at the time of application, the couple had a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship was genuine and continuing and that the couple lived together or not live separately and apart on a permanent basis for the purposes of s 5F(2)(b) to (d) of the Act.

43. Accordingly, I am satisfied that the requirements of s 5F(2) were met and the couple was in a married relationship, as defined in the Act. Therefore, the applicant meets cl 309.211(2)(a) as the applicant was the spouse of the sponsor, who is an Australian citizen.

44. 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

45. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.211(2)(a)of Schedule 2 to the Regulations

    Tegen Downes
    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).