Malhi (Migration)

[2017] AATA 2516

Malhi (Migration) [2017] AATA 2516 (1 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amanpreet Singh Malhi

CASE NUMBER:  1702613

DIBP REFERENCE:  CLF2011/173434

MEMBER:Rosa Gagliardi

DATE:1 September 2017

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 01 September 2017 at 3:56pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – Valid marriage – Joint household assets – Joint overseas travel – Long-standing relationship

LEGISLATION
Migration Act 1958 ss 5F, 5F(2)(a)-(d), 65
Migration Regulations 1994 rr 1.15A, 1.15A(3), Schedule 2 cls 801.211, 801.221, 801.221(2), 801.221(2)(c)

CASES
Mahli v MIBP [2017] FCCA 119

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 23 January 2014 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 13 October 2011 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.211 and cl.801.221 because there was insufficient evidence to be satisfied that the parties are in a genuine and continuing spousal relationship as set out in Regulation 1.15A, among other things.

4. On 20 March 2015 the Tribunal as it is currently constituted made a decision to affirm the department’s decision to refuse the visa on the basis that it had concerns about whether the relationship had been entered into for the sole purpose of the applicant gaining a migration outcome.

5. In Mahli v MIBP [2017] FCCA 119, the Federal Circuit Court of Australia found, however, that among other things, “…the proper construction of sub-s.5F(2)(c) of the Act is that the focus of that provision is about the relationship, such as it is.  It is not to be qualified by attention to whether or not the quality of that relationship otherwise answers the description of a married relationship of husband and wife.”  And further, “There is no authority as to what is contemplated by the requirement that the relationship be ‘genuine and continuing’.  The assessment as to whether the relationship is genuine and continuing must focus on the relationship as it is, at the time of the Tribunal decision.  The reasons for the parties entering the relationship are not to be taken as an indication that the relationship is not genuine.  Parties may enter into a relationship for motives which are not necessarily genuine.  It may be that the relationship is commenced for the very purpose of a person obtaining a visa.  It may be that the relationship was entered into for reasons which were ill-conceived or precipitous.  However, this is not relevant in considering whether the parties, at the time of the Tribunal decision, have a mutual commitment to a shared life”.[1] 

   [1] accessed on

6. Furthermore, the FCCA found that the Tribunal became overwhelmed by the differences in age of the parties.  The applicant is 26 years of age and the sponsor, Ms Teresa Bartlett, is 52 years of age and the Tribunal focussed on the fact that the parties had not discussed having children together or the possibility of not having any given the sponsor’s age, even though the Minister highlighted that this was only a strand of concerns held by the Tribunal.  The relevant judgement reads “It certainly does not require, and in my opinion, would amount to an incorrect test, for the Tribunal to speculate regarding matters that might arise in a period beyond the foreseeable future, which would affect the relationship of the persons or couple”.[2]

   [2] Ibid.

7. Having had regard to the Court’s decision, and reasoning and having had consideration for the additional information submitted by the parties in support of their application at the time of writing this decision which is substantial, the Tribunal has concluded that the matter should be remitted for reconsideration on this occasion.

8. The Tribunal would like to emphasise that this case does not have any precedential value because the circumstances and facts are particular to this matter only. In the Tribunal’s view it is a relevant consideration if the applicant enters a relationship for the sole purpose of attaining a migration outcome and the evidence does not otherwise point to a genuine and continuing spousal relationship.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DEFACTO (cl.801.221(2))

   Whether the parties are in a spouse or de facto relationship

9. 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.

10. ‘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 husband and wife 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?

11. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The evidence demonstrates that the parties wed on

    
    

    23 September 2011. 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 spousal relationship met?

12. The sponsor is financially established in that she has purchased her own unit prior to marriage to the applicant and she does not have a mortgage on this property.  The evidence indicates that the applicant provides financially towards the household, including to body corporate fees and other household utility items. 

13. The applicant had his own bank account which then became a joint account reflecting deposits of cash payments by the applicant consistent with his statements at hearing that he contributed cash payments to their pooled financial resources.  More recent joint bank account transaction records have been submitted from December 2014 through to June 2017, detailing purchases for a household and other routine purchases that would indicate the funds are being used for the shared household.  In addition, the parties have submitted evidence of a joint loan account of $18,469.38 taken out over three years from 20 January 2015. 

14. For the financial year 2015-2016, the sponsor earned a taxable income of $49,471.  The applicant earned, for the same period, $50,101.  Despite not having a mortgage together the parties appear to have few savings at the current time as evidenced by the joint bank account.  If the parties have separate savings accounts it is difficult to discern from the evidence, although the Tribunal notes that the parties are considered low income earners. 

15. The Tribunal places some weight on the evidence that reflects a certain amount of pooling of resources by the parties.

    The nature of the household

16. The evidence submitted is reflective of the parties’ statements that they have been sharing a residence since June 2011.  The Tribunal accepts that the parties have been residing together for a lengthy period, over 6 years now, and that utility accounts, taxation records and other documentation submitted are also consistent with their claims that they reside at the same address and have been doing so for 6 years. 

17. The financial documentation indicates that the parties’ joint account is used to pay for household items and importantly to pay for everyday items and expenses by two people residing in the same household. 

18. In addition, there is evidence of the purchase of furniture and other household items in both names.

19. Taking the evidence submitted at face value, the Tribunal places some weight in the applicant’s favour on the evidence submitted demonstrating that the parties have consistently resided in the same home since their relationship began as de facto partners, initially in June 2011, and then as spouses from 23 September 2011.

    Social aspects of the relationship

20. The parties have submitted photos of themselves in holiday situations as well as in household situations.  Other photos depict them socialising with others.  Such photos show the sponsor’s children socialising with the applicant, including with the sponsor’s mother. 

21. Several statutory declarations have been provided stating that the Tribunal ought to be convinced that the relationship is genuine and continuing because the parties have been married for such a long time now.  They have travelled together to visit the applicant’s cousin in Brisbane on several occasions, for example.  The sponsor’s mother also provided a statutory declaration indicating she considered the relationship to be genuine and continuing because the parties spoke of their future plans together.

22. It was argued at the previous hearing that communication between the sponsor and the applicant’s parents in India were not extensive because of the language barrier, but it was asserted that the applicant’s parents were aware of the relationship and had no opposition to it.

23. At the previous hearing held on 18 December 2014 the parties claimed that they were to travel to India together.  Movement records show that the applicant departed Australia on 11 March 2015 and returned to Australia on 29 March 2015.  The sponsor’s movement records also show that she departed on 11 March 2015 and returned to Australia on

    
    

    29 March 2015 indicating that the parties have travelled together overseas, or to attend the applicant’s sister’s wedding together.  The Tribunal places significant weight in the applicant’s favour on this joint travel. 

24. The Tribunal also notes that the applicant then departed Australia without the sponsor in April 2015 for 9 days.

25. The parties’ respective tax return documentation for the past several financial years reflect that the parties have nominated each other as being their respective spouses, indicating that they are declaring themselves as such to a key Australian government organisation.

26. More recently the parties have submitted additional information by way of third party statements and statutory declarations attesting to the genuine and continuing nature of the relationship.  The sponsor’s mother, Ms Norma Yates, has submitted a statutory declaration Form 888, dated 24 February 2017, declaring that the applicant first went to her home in 2011 and that she has contact with her daughter and the applicant on a regular basis; about 4 to 5 times per week.  Ms Norma Yates declares that both parties do a lot for her around the house, taking her shopping, for dinner or keeping her company at home.  Ms Yates adds that she considers the relationship is “a true relationship” because she sees it in the way they treat each other, the respect they have for one another, and because in her view, it is not possible to fake true love.  She adds that the parties if separated are constantly texting each other.

27. The sponsor’s son, Joel Anthony Bartlett, has also submitted a Form 888, dated 23 February 2017, stating he socialises with the parties every few weeks or when they go to say hello at his store.  Mr Bartlett states that the parties have rarely been apart in the last 6 years, aside from the applicant having to return to India alone for his father’s funeral as the sponsor had used up all her annual leave to go to the applicant’s sister’s wedding in India. 

28. Mr Bartlett has written that he has no doubts that the parties genuinely love each other. 

29. Ms Karen Grewal who is married to the applicant’s husband also expresses her view that the relationship is genuine as the parties had travelled to see her and her family twice in Brisbane.  Her family also travelled to Melbourne to stay with the applicant and sponsor. 

30. The Tribunal places considerable weight on the evidence submitted that shows that close family members and others consider the relationship to be genuine and continuing and that they have declared themselves consistently to government agencies as being married.

    Nature of persons’ commitment to one another

31. The Tribunal accepts that this is a long-standing relationship now of some 6 years’ duration and that the length of their relationship also covers the number of years they have lived together.  The Tribunal considers that this is a factor which, of its own does, not necessarily indicate a genuine relationship, however, in the context of the other evidence submitted, persuades the Tribunal that the parties have a mutual commitment to one another to the exclusion of others and that they draw companionship and emotional support from one another and that they see their relationship as long-term.

32. The Tribunal is also satisfied that the parties live together and are not living separately and apart on a permanent basis.

33. Having considered the evidence singularly and cumulatively, and given the findings above, 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).

34. 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

35. 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).

    
    

1 September 2017.