1416754 (Migration)

[2015] AATA 3847

1416754 (Migration) [2015] AATA 3847 (16 December 2015)

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DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Muhammad Sameer Sabir

VISA APPLICANT:  Mrs Andila Sameer

CASE NUMBER:  1416754

DIBP REFERENCE(S):  BCC2014/690747

MEMBER:Rieteke Chenoweth

DATE:16 December 2015

PLACE OF DECISION:  Sydney

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; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 16 December 2015 at 3:16pm

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 19 June 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 applied for the visa on 10 March 2014 on the basis of her relationship with her sponsor, the review applicant. 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. 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.309.211.

3. 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 applicants are in a genuine relationship.   

4. The review applicant appeared before the Tribunal on 15 December 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Andila Sameer, the visa applicant.

5. The review applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the review applicant, Mr Muhammad Sabir, and the visa applicant, Ms Andila Sameer, are in a genuine spouse relationship.

   Whether the parties are in a spouse or de facto relationship

8. 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 spouse of the review applicant who is an Australian citizen.

9. ‘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 as to 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.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The parties were married on 20 March 2013. They have provided a copy of their Marriage Registration Certificate as issued by NADRA on 8 April 2013. 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?

    Financial aspects of the relationship

11. In a submission to the Tribunal before the hearing the migration representative provided documentary evidence of financial remittances from the review applicant’s Commonwealth Bank account to his brother in Pakistan.  He stated the brother gave the money to the visa applicant.

12. The review applicant told the Tribunal he was not able to open a joint bank account with his wife immediately after the wedding and before he returned to Australia 6 days later because he needed to have the marriage certificate to open the account and this took several days to obtain.  However, when he returned in 2014 he and his wife opened a joint account and he now remits money to her through that account.  There are copies of the bank statements showing the remitted amounts on the Tribunal file.

13. The Tribunal accepts that where parties live in separate countries there is a limited opportunity to have a pooling of financial resources.

14. The review applicant said he has purchased land in Lahore on which he plans to build a house in which he and his wife and their family can live when they visit Pakistan. He said that his family home is rather crowded as his brother’s and their wives and children live there and so it is difficult for the review applicant and his wife to stay with the family.  They plan to visit Pakistan on a regular basis. There is a copy of the contract for the purchase of the land on the Tribunal file.  The purchase is in joint names.

    Nature of the household

15. Before the hearing the migration representative for the review applicant submitted a copy of a birth certificate and passport for the couple’s child, Huzaifa Sameer, born 3 July 2015. The Tribunal notes the date of birth of the child is consistent with the review applicant’s visits to Pakistan. The child lives in Pakistan with his mother.  There are photos of the couple together with the child and with other members of the family.

16. The review applicant said that after the marriage he and his wife lived with his family until he returned to Australia.  After this, his wife stayed with his family for a week or so but then she moved back to her parents’ house as there is more room there and it was closer to where she was studying. He said that she would visit his family on a regular basis.  He said that in the week or so leading up to his return his wife moved back to his parents’ house so their    child would get to know and be comfortable with his family before his return.  He also said it was not appropriate for him to live at his wife’s family house even though there was more room there. 

    Social aspects of the relationship

17. The review applicant has submitted a number of photos of him and his wife together with members of their families.  Some of these are from their wedding. Some of the photos are more recent ones which include their son.

18. In the decision record the delegate noted that in support of the application the couple had provided two 888 forms in support of their relationship. The delegate interviewed Mr Zahid Sabri, the review applicant’s brother-in-law, who is one of the declarants by phone and considered he did not know the name of the visa applicant. After a pause he provided the name Andila. At the hearing the review applicant said that it was not common in their culture for his brother-in-law to address his wife by her first name and therefore he had needed to pause and think about it.

19. At the hearing the migration representative submitted a statement from Mr Zahid Sabri which stated “In our culture it is not common and is considered rude if I were to address Andila by her first name.  I have therefore always referred to her as Mrs Sameer or Sameer’s wife. It is due to this that I did not instantaneously remember Andila’s …. During this interview I was also asked about Andila’s living arrangements. I knew that she was residing with her mother at their family home but did not know of any other details.  I did not intend to say that she lived with her mother alone, but that all I knew was that Andila lived with her mother.”

20. The Tribunal is satisfied that the couple present themselves to others as being in a spouse relationship.   

    Nature of persons commitment to each other

21. The review applicant told the Tribunal that he met his wife at the wedding of a cousin.  She had attended because she was distantly related to the couple. They had been introduced but had only had a brief conversation. His cousin had later told him that his mother had suggested that they may be suitable for each other and had given him her telephone number. The visa applicant gave a similar account and said that about a month after the wedding he had telephoned her. Initially they had talked about once a month but then gradually this had increased and they started to develop a relationship.

22. In the decision record the delegate noted that the visa applicant said that her husband had proposed at the Dherra restaurant whereas the review applicant said he had proposed at the Bundal Khan restaurant. At the hearing the review applicant agreed that it was actually at the Dherra restaurant that he had proposed.  He said that they had been to a number of restaurants together in the period before he proposed and he had got the restaurants mixed in his memory. The Tribunal accepts the review applicant made an honest mistake in his recollection of which restaurant he proposed in.

23. The Tribunal asked the review applicant whether he had ever previously been engaged.  The Tribunal notes the delegate, in the decision record, stated that at the interview he had said that he was engaged a “long time” but he broke it off whereas the visa applicant had stated he was not engaged before.

24. The review applicant said that his mother had been in contact with another family with a view to arranging a marriage with their daughter. There had never been a formal engagement but the families had believed that they would marry at some stage in the future. He said that he had broken it off because he did not feel he was ready to marry.  He said that before he came to Australia he had set up a business in share trading in Pakistan and had lost a lot of money.  Consequently, he had not felt he could commit to an engagement as he had nothing to offer and had therefore told his family that he was breaking it off. The visa applicant said she believed her husband had been engaged before. She told the Tribunal that she knew her husband had been in business and had lost money previously. The Tribunal considers that the applicants gave honest and credible evidence concerning this matter.  They did not alter their evidence in the light of the comments made in the delegate’s decision.    

25. The Tribunal put to the review applicant that the delegate had asked him about his travelling to Fiji with another woman.  He said the other woman had been a friend from work.  He was not romantically involved with her. He said that he was in Australia on his own and had been befriended by the woman and her children. Her youngest daughter in particular had wanted him to go to Fiji with them.  He said that although it was unusual he had gone on the holiday.  His wife knew about the trip to Fiji. He said that although he had not told his wife at the time who he was travelling with she now knows who he was travelling with and does not mind.  

26. In his written statement to the Tribunal, Mr Zahid Sabri stated that he had believed the review applicant was travelling with a male colleague but now knew that he was travelling with a former female colleague.

27. The Tribunal asked the review applicant about the comment in the decision record that he had stated that his wife was a school teacher whereas she had stated she was a housewife.  He said that his wife had no formal qualifications as a school teacher and that this was not unusual in Pakistan.  She had worked as a teacher for a while but had then stopped work as she was not happy in the job. When he was interviewed he had thought he should say what he had put on the application form even though he knew that at the time she was no longer working as a school teacher. The visa applicant also told the Tribunal that she had been working as a school teacher but had then stopped this work and stayed at home. She is now at home caring for their child.

28. Both the review applicant and the visa applicant said that they hoped to be able to travel to Mecca at some stage.

29. The delegate further noted that when the visa applicant was asked what work her husband does in Australia she said he worked in IT because that was what his formal training was in. This was his chosen profession.  He was in fact working at IKEA as a forklift driver at the time. The review applicant said that when he came to Australia he was not able to find a job in IT and so had taken a job at IKEA.  He is now working in security with SMS. The visa applicant told the Tribunal she had thought she was being asked what her husband’s chosen profession was. She knew had had worked in the IT industry in Pakistan.

30. In the decision record the delegate notes that the review applicant had said he liked going to the gym and cooking in his free time whereas the visa applicant had said he liked swimming.  At the hearing the review applicant said he goes to the gym and does this also when he is in Pakistan. He said the delegate had misunderstood him in saying he liked cooking as he only cooks because he is on his own and cooks for himself. He said that he had never learned to swim and felt that he should learn to do this as he now lived in Australia and so he had taken swimming lessons.  He had talked to his wife about this and so she thought it was an interest of his.

31. The Tribunal finds that the review applicant and the visa applicant are committed to each other and to their relationship. It finds there is a child of the relationship and that they are committed to the care of the child.

32. The Tribunal finds that the review applicant and the visa applicant are married to each other under a marriage that is valid for the purposes of the Act. The Tribunal finds they have a  mutual commitment to a shared life as husband and wife to the exclusion of all others and they do not live separately and apart on a permanent basis.

33. Given these findings the Tribunal is satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship.

34. Therefore the visa applicant meets cl.309.211 and cl.309.221.

35. 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

36. 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; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Rieteke Chenoweth
    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).