1503961 (Migration)

[2015] AATA 3549

1503961 (Migration) [2015] AATA 3549 (15 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Amanullah Mohammad Essa

VISA APPLICANTS:  Ms Fatima Aliyawar
Master Irfan Ali

CASE NUMBER:  1503961

DIBP REFERENCE(S):  2013/022883

MEMBER:Kate Millar

DATE:15 September 2015

PLACE OF DECISION:  Adelaide

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

·cl.309.211 of Schedule 2 to the Regulations

STATEMENT MADE ON 15 OCTOBER 2015 AT 4:01PM
APPLICATION FOR REVIEW

1. Mr Essa came to Australia in 2008 as a dependent of his sister-in-law and is now a permanent resident of Australia. He says he met Ms Aliyawar, a citizen of Afghanistan, over the internet and asked her to marry him. He travelled to Pakistan in October 2012 and says they married on 17 October 2012. Since then, he says his son Irfan was born on 19 November 2013. Ms Aliyawar and Irfan have applied for Partner (Provisional) (Class UF) visas, and their application were refused be a delegate of the Minister for Immigration and Border Protection under s.65 of the Migration Act 1958 (the Act).

2. Mrs Aliyawar applied for the visa on 2 June 2013, and Irfan was added to the application after his birth. At the time Mrs Aliyawar applied, 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). Mrs Aliyawar must satisfy the primary criteria for the grant of the visa and Irfan need only satisfy the secondary criteria. The primary criteria include cl.309.211. As it applies to Mrs Aliyawar this requires her to be the spouse of Mr Essa as defined by the Act and Regulations. The delegate was not satisfied that at the time of the visa application she was the spouse of Mr Essa as defined.

3. Mr Essa appeared before the Tribunal on 15 October 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Aliyawar. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether Ms Aliyawar was the spouse of Mr Essa at the time of the visa application.

   Whether the parties are in a spouse or de facto relationship

6. 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 case Mrs Aliyawar claims to be the spouse of Mr Essa who is an Australian permanent resident.

7. ‘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?

8. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.  Ms Aliyawar provided a marriage certificate and translation that states they married in Quetta on 17 October 2012.  Mr Essa provided another marriage certificate and translation, which he says he obtained from Afghanistan after sending Ms Aliyawar and Irfan to Afghanistan to obtain the certificate. The later marriage certificate has a date of issue of 25 July 2015 and a date of marriage contract of 2012.  Photographs of the wedding were provided to the tribunal.

9. On the evidence before it, the tribunal is satisfied 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?

10. In regard to the financial aspects of the relationship, the parties gave consistent evidence that within two weeks of their marriage, Mr Essa has rented a room for Ms Aliyawar and their son when he was born.  Mr Essa said when in Australia he sends money every month of between AUD400 (approximately 30,000PKR) to AUD 600 (approximately 44,000PKR).  Mr Essa said Ms Aliyawar’s father supported her until she married, but that he has supported her since.

11. While hey do not have any joint property, Ms Aliyawar correctly identified that in Australia Mr Essa owns a car.  When in Pakistan Mr Essa stays with Ms Aliyawar and Irfan, and both independently stated that she lives in one room of a house and one other family lives in the house. 

12. The tribunal finds they pool financial resources and also share day-to-day expenses when Mr Essa is in Pakistan.

13. In regard to the social aspects of the relationship, Mr Essa could correctly identify members of Ms Aliyawar’s family, and says he has met them while in Pakistan.  Ms Aliyawar has met Mr Essa’s sister who lives in Pakistan and could name her children but could not specify their ages, and said they live some distance from her.  Ms Aliyawar provided a statutory declaration from Mr Essa’s brother in support of the relationship with the visa application.  The tribunal is satisfied that the parties have knowledge of each other’s family and this supports their evidence to have met family members.  The tribunal is further satisfied the families’ recognise the relationship.

14. Mr Essa and Ms Aliyawar have a son Irfan.  The birth certificate provided to the Department names Mr Essa as the father of Irfan.  The later evidence tends to support the genuineness of the relationship at the time of the application. Mr Essa has been to Pakistan on three occasions for significant periods of time.  In 2012, when they were married, he was out of Australia for over five months, in 2013/2014 around the birth of Irfan he was out of Australia for approximately four months, and more recently he was out of Australia for approximately three months.  On the basis of consistent evidence from the parties of the living arrangements at this time, the tribunal is satisfied they have lived together in the time he was out of Australia.  At the time of the visa application, they had lived together for approximately five months. 

15. In regard to the nature of the commitment, the parties independently gave consistent evidence about their contact when apart and a consistent account of Mr Essa breaking his hand earlier this year.  They provided consistent information about the type of work Mr Essa does in Australia and of his living arrangements when in Australia.  They were consistent on where they would live if Ms Aliyawar and Irfan were to come to Australia.  The tribunal is satisfied this knowledge of each other demonstrates a genuine commitment and that they provide each other with companionship and emotional support.  The tribunal considers current evidence of the relationship supports the stated nature of the relationship at the time of the visa application. 

16. Given these findings the Tribunal is satisfied that at the time the visa application was made the parties were in a spousal relationship as defined by section 5F of the Act in that they were married to each other under a marriage that is valid for the purposes of the Act, they have a mutual commitment to a shared life to the exclusion of all other, the relationship is genuine and continuing and the parties live together or do not live separately and apart on a permanent basis.

17. Therefore Ms Aliyawar meets cl.309.211, and it is possible Irfan can meet cl.309.311.  The the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.

    DECISION

18. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations.

    Kate Millar
    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).