In a recent case before the Australian Federal Circuit Court, an application for a spousal visa was denied due to a lack of evidence of a genuine and continuing relationship between the applicant and sponsor.
According to the court documents, the applicant is a citizen of India, born on 25 September 1984. She married Mr Oud S (Sponsor) on 10 February 2014. On 28 February 2014, the applicant applied for the Visa. Mr Saiyasaeng sponsored the Visa application based on his spousal relationship with the applicant.
However, the Department of Home Affairs and Immigration refused to grant her the Visa as the Department was not satisfied, on the information and evidence available, that the applicant and the sponsor satisfied the definition of spouse under the set regulations.
The applicant challenged the decision in the Administrative Appeals Tribunal, which upheld the Department’s decision not to grant her the spouse visa. The Tribunal considered the evidence on the relationship’s financial, household, social, and commitment aspects.
AAT found no evidence of pooling financial resources or sharing day-to-day expenses based on bank account statements provided to the Department. The Tribunal noted minimal activity on the accounts, suggesting the parties did not live together.
Regarding the nature of the household, the Tribunal noted that there was no convincing evidence that the applicant and sponsor lived together at the time of the visa application or the Tribunal’s Decision. It observed that there was no evidence that the parties shared a house and that the applicant had not provided any evidence that she and the sponsor had been sharing a household since the Department’s decision.
The social aspects of the relationship were also considered, with the Tribunal finding that there were few photographs of the applicant and sponsor together, other than on their wedding day. It was concerned that there were no photographs of the couple with friends and could not be satisfied as to how widely the applicant and sponsor represented themselves as being married or the degree to which their relationship was accepted and supported by others.
The Tribunal considered the nature of the applicant’s and sponsor’s commitment to each other. The Tribunal referred to the evidence of when their relationship began, their marriage certificate, and the fact that the applicant had not provided any further evidence to the Tribunal attesting to the nature of their commitment to one another since the Department’s Decision was made.
The Tribunal concluded that there was insufficient evidence to show that they had a mutual commitment to a shared life as wife and husband and that their relationship was genuine and continuing.
During the hearing, the Tribunal received two anonymous letters alleging that the applicant’s marriage was fake and the couple was not living together.
The applicant challenged the Tribunal’s decision in the Federal Circuit And Family Court Of Australia, where Her Honour Judge C. E. Kirton Kc found that the Tribunal had made no judicial error in its decision.
In her decision, Judge Kirton said, “The Tribunal came to the same conclusion as the Delegate in that the evidence of financial arrangements, domestic living arrangements, social aspects, and commitment was inconsistent with and failed to demonstrate a genuine, committed spousal relationship. In considering whether there was a spousal relationship, the Tribunal gave some weight to the financial arrangements and substantial weight to the living arrangements. The Court cannot accept the contention that anonymous allegations were not critical in assessing the relationship between the applicant and sponsor.”
The Court dismissed the plea and ordered the applicant to pay the Minister’s fixed costs of $5,400.
There have been several cases of fake marriages in Australia involving Indian nationals. In 2018, the Australian High Commission in India warned Indian nationals seeking permanent residency about fake marriage schemes that target South Asians.
This warning had come in response to the Australian Border Force (ABF) dismantling an intricate contrived marriages syndicate in Sydney, with a 32-year-old Indian national accused of being the primary facilitator. Four Australian citizens were also charged for persuading individuals to engage in fraudulent marriages with non-citizens seeking permanent residency.
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