1411742 (Migration)

[2015] AATA 3087

1411742 (Migration) [2015] AATA 3087 (13 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Maureen Ann Goh

VISA APPLICANT:  Mr Zahir Samad

CASE NUMBER:  1411742

DIBP REFERENCE(S):  OSf2013/031209 OSF2013/044817

MEMBER:Kira Raif

DATE:13 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 13 July 2015 at 4:35pm

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 30 April 2014 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Pakistan, born in April 1979. He has applied for the visa on 13 May 2013 on the basis of his relationship with his sponsor, the review 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 in a genuine spouse or de facto relationship with the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 6 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s son. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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. In the present case the visa applicant claims to be the de facto partner of the review applicant who is an Australian citizen.

5. ‘De facto partner’ is defined in s.5CB of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

6. In forming an opinion whether they are in a de facto relationship consideration must be given 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.1.09A(3) which is attached to this decision.

   Are the parties validly married?

7. The visa applicant provided with the application a copy of the marriage deed dated January 2013. However, the primary decision record, which the review applicant provided to the Tribunal, indicates that the marriage deed is not a legal document and while the parties have provided an explanation of why they were unable to obtain an officially registered marriage certificate, the information in the primary decision record indicates that the marriage was not registered by the relevant authorities in Pakistan until 2015. Both the visa applicant and the review applicant suggested to the Tribunal that Nikah Nama was sufficient to validate the marriage and provided a statement from Mr Vardag, an advocate of the Supreme Court indicating the marriage was valid prior to formal registration, however, the Tribunal is also mindful that section 5 of the Muslim Family Laws Ordinance 1961 provides that the marriage must be registered. The primary decision record indicates that the marriage was not registered and the review applicant’s oral evidence to the Tribunal is that for various reasons, that did not occur until March 2015.

8. The Tribunal is not satisfied that at the time the application for the visa was made, the marriage between the applicant and the sponsor was valid. On the evidence, the parties were not married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a). As such, the Tribunal will consider the relationship against the de facto provisions.

   Are the parties in a de facto relationship?

9. As the visa applicant and review applicant are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a spouse relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

10. In forming an opinion whether they are in a de facto relationship consideration must be given 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.1.09A(3)

11. The Tribunal is mindful that a substantial number of supporting documents has been presented with the primary application and additional materials are before the Tribunal. These include photographic evidence, evidence of communication between the parties, financial records, statements from third parties, evidence of financial transfers and other materials. The Tribunal places significant weight on the fact that the couple had been living together for several months, that they are in regular communication and the relationship appears to be recognised, and supported, at least by some of the sponsor’s friends and relatives. Despite that, the Tribunal has significant concerns about this relationship and the mutual commitment of the parties. The Tribunal’s concerns are set out below.

12. The chat history provided by the parties in support of the application (as set out in the primary decision record) indicates that the parties had first contact on 21 February 2012. By 24 February 2012, merely three days after first contact, the visa applicant was suggesting he could come to Australia and by 25 February 2012, four days after initial contact, the visa applicant informed the sponsor that he loved her and wanted to marry her. On 5 March 2012, two weeks after the initial contact, the couple were discussing the applicant’s migration to Australia. The Tribunal is of the view that the extreme haste with which the relationship and migration were discussed suggests this was the primary aim of the visa applicant. The Tribunal is not satisfied that the couple had formed a mutual commitment to a life together to the exclusion of all others after a couple of days of internet communication. This is particularly so in circumstances where the visa applicant’s English was poor, according to the review applicant’s evidence to the Tribunal. Rather, the Tribunal is of the view that the visa applicant’s aim was to find a partner to enable his migration overseas and, having been in touch with the sponsor, he has done everything possible to ensure the relationship and visa sponsorship ensued.

13. In the Tribunal’s view, a strong support for that proposition is the fact that the visa applicant continued his internet contact with other women after his contact with the sponsor started. According to the primary decision record, the sponsor stated during the interview that the applicant had been corresponding with other women he met on the internet or dating sites and had invited a woman from the UK to visit him in Dubai. This is despite professing his love and commitment to the sponsor shortly after the first contact. The review applicant’s and the visa applicant’s explanation to the Tribunal is that the person was ‘a fake’ and the visa applicant called the bluff to show the person as a fake but it is unclear to the Tribunal why the visa applicant would wish to continue to visit the dating sites and engage with their participants after he claims to have made a commitment to the relationship with the sponsor. In the Tribunal’s view the applicant’s ongoing involvement with the dating site suggests that he was willing to enter relationship with any person who would give him the opportunity to obtain a visa and had ‘kept his options open’. The Tribunal is not satisfied that the visa applicant has any commitment to the sponsor or his relationship with the sponsor. His commitment appears to be to the opportunity that the sponsor could offer of relocating to Australia.

14. When questioned about the quick inception of the relationship, the Tribunal found the visa applicant’s oral evidence to be evasive and vague. The Tribunal asked the visa applicant why the relationship formed so quickly and why he proposed after knowing the sponsor for only a few days. The visa applicant suggested it was culturally appropriate and not uncommon to propose after knowing someone only for a few days. When asked if on the same basis he proposed to anyone else on that website, since he was looking for a partner and claims he was in contact with Pakistani women, as well as ‘foreigners’, the applicant suggested it was not culturally appropriate. It is unclear why the applicant felt culturally and religiously appropriate to propose to the sponsor within a few days of getting to know her and why he did not feel it was culturally appropriate to do the same with anybody else. The applicant suggested he felt love in his heart and it was God’s choice. The Tribunal finds these explanations unconvincing. The applicant informed the Tribunal that boyfriend / girlfriend relationships were not allowed in Pakistan and that is why he proposed so quickly. However, the sponsor did not agree to the proposal and did not agree to the relationship until the parties met in person some months later. That did not prevent the relationship from continuing. That is, the visa applicant felt comfortable having some form of relationship with the sponsor, which was not a marital relationship, despite claiming that having a relationship was not culturally appropriate. If it was okay to have such a relationship, it remains unclear to the Tribunal why the visa applicant felt the need to propose within a few days of first contact with the sponsor.

15. The Tribunal is mindful of cultural differences as discussed in the primary decision record. The delegate (who the Tribunal considers to be reasonably knowledgeable in these matters by virtue of their employment and geographical location), notes in the decision record the significant age difference between the parties, stating it is unusual in the local culture for a marriage with such age difference and when the visa applicant may not be able to have children from that relationship. The Tribunal gives these matters some weight. 

16. Overall, the Tribunal has found the review applicant to be a truthful and forthright witness. The Tribunal gives considerable weight to the fact that she travelled to Dubai and Pakistan on multiple occasions and spent several months with the visa applicant. In the Tribunal’s view, that shows her commitment to the relationship. The Tribunal accepts that the review applicant met the visa applicant’s immediate family and that the relationship has been disclosed to others. The Tribunal accepts that the review applicant has been providing regular financial support to the visa applicant and accepts that financial commitment as evidence of the review applicant’s commitment to the relationship. The Tribunal also accepts that the visa applicant has established regular contact with the sponsor’s son. The Tribunal accepts that there are many indicia of this relationship that point to it being a genuine one.

17. However, the Tribunal is not satisfied that the commitment to the relationship is a mutual one. For the reasons stated above, the Tribunal is not satisfied that the visa applicant is committed to this relationship. The Tribunal has formed the view that the visa applicant is using this relationship as a means of establishing residence in another country. In reaching this conclusion, the Tribunal acknowledges, but does not accept, the review applicant’s evidence that he prefers to live in Pakistan. Essentially while the Tribunal accepts that the review applicant is fully committed to the relationship and views it as a long term one, the Tribunal is not satisfied that there is a mutual commitment to a shared life to the exclusion of all others. The Tribunal is not satisfied that if the visa applicant were to be granted the visa and if he were to enter Australia, the relationship would continue.

18. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of application and decision

19. If the Tribunal were wrong in its findings in relation to the validity of the marriage, and fi the Tribunal were to accept that the marriage was a valid one, for the same reasons, the Tribunal would not be satisfied that the visa applicant is the spouse of the review applicant because the Tribunal is not satisfied that he has any commitment to this relationship. The Tribunal is not satisfied that at the time of the application, the visa applicant met cl. 309.211(2) either on de facto grounds or on the basis of a valid marriage. The Tribunal is not satisfied that the visa applicant meets the requirement at the time of this decision. There is no evidence that the visa applicant meets the alternative criterion in cl. 309.211(3). The Tribunal is not satisfied that the visa applicant meets cl. 309.211 and cl. 309.221.

    Conclusion

20. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

21. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Kira Raif
    Senior Member