1729408 (Migration)

[2020] AATA 5480

1729408 (Migration) [2020] AATA 5480 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1729408

MEMBER:Helena Claringbold

DATE:27 October 2020

PLACE OF DECISION:  Sydney

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.309.311 of Schedule 2 to the Regulations; and

·the second named visa applicant be considered against the relevant criteria for the grant of the visa.

Statement made on 27 October 2020 at 3:28pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – members of the family unit – secondary applicants are child and grandchild of the sponsor – forced marriage under age against family wishes – marriage not recognised under Pakistani or Australian law – dependent child – applicant lived with and is financially dependent on the sponsor – applicant was unmarried and dependent at the time of application – decision under review remitted      

LEGISLATION

Marriage Act (Cth), s 88D
Migration Act 1958 (Cth), s 5F
Migration Regulations 1994 (Cth), r 1.12; Schedule 2, cl 309.311

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 16 November 2013, [Ms A], the primary visa applicant applied for a Partner (Provisional) (Class UF) visa. The application was based on her partner relationship with [name], the sponsor and review applicant. Six of their biological children and one grandchild were included in the application, as secondary visa applicants. [The applicant], is the third named visa applicant and her child, [named] ([her son]), is the seventh named visa applicant. Their applications were based on them being a ‘member of the family unit’ of [Ms A] or her spouse.

2. On 14 September 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visas for [the applicant] and [her son]. The delegate was not satisfied that they were ‘members of the family unit’ of [Ms A] or her spouse. As a result, the delegate found that at the time of application, they did not meet cl.309.311 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 23 November 2017, the sponsor provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision relating to [the applicant] and [her son].

3. On 8 April 2020, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from [the applicant], [Ms A] and [Ms B], [who is the applicant’s] sister.  The Tribunal hearing was assisted by the services of an interpreter in the Pashto and English languages. The sponsor was represented in relation to the review by his registered migration agent (migration agent).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether the visa applicants are members of the family unit of the primary visa applicant or her spouse.

   BACKGROUND ON THE EVIDENCE

7. The sponsor was born in [year] in Swat, Pakistan. On 21 July 2010, he was granted a [temporary] visa.  He was subsequently granted further [such temporary] visas. [In] September 2012, the sponsor was granted a Subclass 866 protection visa. The sponsor lives in Australia with [Ms A] and four of their children. Three of their children, including [the applicant] live in Pakistan.

8. On 16 November 2013, [Ms A] applied for a partner visa based on her relationship with the sponsor. The sponsor’s seven children and one grandchild were included in the application as secondary visa applicants. One child was withdrawn from the application during the application process. [In] October 2017, [Ms A] and five of the secondary applicants were granted [partner] visas. [Ms A] and four of the secondary visa applicants entered Australia [in] February 2018. Another secondary visa applicant entering Australia [in] May 2018 and departed Australia [in] July 2018.

9. [The applicant] was born in [year] in Swat, Pakistan. On 16 November 2013, the time of application she was [age] years old. On [a day in] September 2016, she married [Mr C]. Their child, [named], was born in 2017 in Swat, Pakistan. [The applicant] and [her son] lived in Pakistan and [Mr C] lives in [Country 1].

   CLAIMS AND FINDINGS

10. At the time of application, the visa applicant must satisfy cl.309.311 of Schedule 2 to the Regulations, which determines that:

    The (visa) applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.

11. ‘Member of the family unit’ is defined in r.1.12 of the Regulations:

    (1)  For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:

    (a)  a spouse or de facto partner of the family head; or

    (b)  a dependent child of the family head or of a spouse or de facto partner of the family head; or

    (c)  a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or 

    (e)  a relative of the family head or of a spouse or de facto partner of the family head who:

    (i)  does not have a spouse or de facto partner; and

    (ii)  is usually resident in the family head's household; and

    (iii)  is dependent on the family head.

12.      Dependent child in relation to a person means;

The child or step-child of the person (other than a child who is engaged to be married or has a spouse or de facto partner), being a child who:

(a)      has not turned 18; or

(b)      has turned 18 and:

(i)      is dependent on that person; or

(ii)      is incapacitated for work due to the total or partial loss of the child’s bodily or mental functions.

1. Information provided as part of the visa application, is that [the applicant] is the biological daughter of [Ms A] and the sponsor. The DNA evidence demonstrated that the sponsor is the putative father of [the applicant].

2. On 6 May 2017, in a written statement [Ms A] declared that [the applicant] recently married and lived with her husband.  On 6 May 2017, the sponsor in a statutory declaration declared, that [the applicant] was [still under age] and about five to six months ago was forced to marry. 

3. In a letter dated 7 May 2017, a psychiatrist stated that the sponsor’s heart is broken about the forced marriages of two of his daughters in recent months, as arranged by his father against both he and his wife’s wishes.

4. On 11 May 2017, the migration agent wrote to the Department and stated the following. We are instructed that [the applicant] is now married and supported by her husband. [The applicant] is pregnant and expecting a child. She continues to satisfy the definition of ‘member of the family unit’, despite being married in Pakistan and being pregnant to her husband. This is because she is [age] years old and her marriage is not taken to be valid under the Regulations’. Consideration must be given to the validity of the marriage under s.88D of the Marriage Act 1961 and that section clearly states that a marriage shall not be recognised as valid at any time while either party is under the age of 16 years. [The applicant] is [under age] and therefore her marriage is invalid under the Regulations. [The applicant’s] marriage is not valid under the Migration Act1958 and therefore should not be considered a ‘spousal relationship’ for the purpose of the ‘dependent child’ definition. Where she lives is irrelevant as to her dependence as she satisfies the definition of ‘dependent child’ of her mother. The migration agent provided the following:

   ·A Marriage Registration Certificate, issued by the Government of Khyber Pakhtunkhwa Pakistan, recorded that on [a day in] September 2016, [the applicant] married [Mr C]. At the time of the marriage, [the applicant] was [specified under age] and [Mr C] was [age]. The certificate was issued [in] May 2017.

   ·A letter dated 17 May 2017, from a medical officer certified that [the applicant] was [number] weeks pregnant to [Mr C].

5. As detailed in the delegate’s decision record on [a day in] May 2017, during a Departmental interview [the applicant] declared that her marriage to [Mr C] was arranged by her paternal grandfather and since her marriage she had lived in her husband’s house and she was [number] months pregnant.

6. On 14 July 2017, the migration agent provided the Department with a birth certificate for [the applicant’s son]. This recorded his date of birth as [date].  [The applicant] is recorded as his mother and [Mr C] is recorded as his father. The migration agent requested that [her son] be added to the visa application as the dependent child of [the applicant].

7. In a statement dated March 2020, [the applicant’s] uncle declared the following. [The applicant] was forced to marry when she was under [age] years old. [The applicant’s] paternal grandfather as head of the family made decisions for the family and no one could oppose him. [The applicant’s] paternal grandfather allowed the marriage between [the applicant] and [Mr C] and [the applicant] moved to [Mr C’s] house. [The applicant] was not supported emotionally or financially by [Mr C] who lives in [Country 1] and has minimal contact with [the applicant]. As a result of not being supported by her in-laws [the applicant] has moved to her parent’s home. The sponsor has [several] shops and a flat and crop fields which he rents and leases. The money from these properties, PKR[amount] for the shops and flat and around PKR[amount] annually from crop fields is collected by and goes to support [the applicant] financially. The sponsor also sends him other money which he gives to [the applicant] for her support.   

8. In a statement dated March 2020, [the applicant’s] maternal grandmother declared the following. Decisions about engagements for her granddaughters were made by their paternal grandfather who is the elder of the family. [The applicant’s] parents were against these engagements. [Ms B] was reluctant about her engagement and due to continuous pressure from her the engagement and marriage didn’t proceed. [The applicant] was forced to marry.  She was less than [age] years old and could not refuse her grandfather’s wishes. Initially [Mr C] and his family cared for [the applicant] but when she became pregnant, she was forced to fulfil most of the household duties. [Mr C] went to [Country 1] a few months after the marriage and has minimal contact with [the applicant] currently.  Neither he nor his family are supporting [the applicant] financially. [The applicant] is living in her parent’s home and financially supported by her father. She also stays with her grandmother sometimes.

9. In a statutory declaration dated April 2020, the sponsor stated the following. His father as the elder of the family is culturally autonomous in his decisions. In the middle of 2016, his sister asked for [the applicant’s] hand in marriage to her son [Mr C]. Without asking their consent his father agreed to the marriage of [the applicant] to [Mr C]. [Ms A] resisted the marriage but his father was unpersuaded. When the sponsor became aware of the marriage, he challenged his father but was told that if he interfered, he would be disowned. He was unable to do anything and was upset by the marriage. [The applicant] was mistreated by [Mr C’s] family. Her study was stopped and she was forced to do home duties. [The applicant] spent four to five months in [Mr C’s] home.  In early 2018, she moved into the sponsor’s home as well as spending time in her maternal grandparents’ home.  [Mr C] is working in [Country 1] and has only visited [the applicant] and his son once for a few weeks and rarely calls [the applicant]. He has never sent money to [the applicant] and since she left his home in early 2018 has stopped calling her. The sponsor has supported [the applicant] emotionally and financially.

10. The sponsor told the Tribunal the following: [Ms A], and his children [Ms B], [and three others named] live with him in Australia.  His other three children and his grandson live in Pakistan. His eldest son [named] lives with a friend and works as [an occupation]. His daughter [named], is married and has a daughter.  [The applicant] lived with the sponsor and her family from the time of her birth and was financially supported by the sponsor. Her marriage to [Mr C] was arranged by his father.  When he objected to the marriage, he was told by his father that if he didn’t agree to the marriage, he would be disowned as a son. After the marriage ([in] September 2016) [the applicant] moved to [Mr C’s] home. Some months after the marriage [Mr C] went to [Country 1]. Some months after the marriage, [the applicant] moved back into the sponsor’s home with [her son] and has been living there for about two years and is supported financially by the sponsor. After [Mr C] went to [Country 1], the Australian High Commission requested identification documents for [her son]. [The applicant] was unable to obtain these documents because of her age. At the request of the sponsor [Mr C] returned to Pakistan to assist and applied for a passport for [the applicant’s son]. [Mr C] knew about the visa applications but does not know about the review of the visa refusals. The sponsor does not know whether [Mr C] intends to come to Australia but doubts that he would leave [Country 1] as ‘they have a shop there’. [Mr C] has not and will not give permission for [his son] to go to Australia. The relationship between [the applicant] and [Mr C] is not good.  [Mr C] is rarely in contact with [the applicant] and currently they are ‘not husband and wife’. [The applicant’s] circumstances are sensitive and divorce has not been spoken about but the sponsor will assist [the applicant] obtain a divorce when the times comes. He has properties and land in Pakistan which he rents. His brother collects the rent and this income supports [the applicant] financially.  He also sends money to his mother-in-law which is used for [the applicant] when she stays with them.

11. In an undated statement [the applicant] declared the following. She was dreaming of enjoying college and becoming a doctor. Her dreams were ruined when her paternal aunt and paternal grandfather planned her marriage to her paternal aunt’s illiterate son.  Her parents were not happy about the marriage. Her father talked with her paternal grandfather but could not change his decision about [the applicant] marrying him. Her mother requested that [the applicant] continue her study and not do household duties. Although unhappy about the marriage [the applicant] married [Mr C] in September 2016. She moved to live with him and his family. After marriage she was forced to stop studying. She was mentally tortured by her aunt and her aunt’s daughters for not being able to carry out domestic responsibilities and continued to be mistreated until she left the home. She complained to [Mr C] who defended his family. [Mr C] went to [Country 1] to work a few months after their wedding and returned for a few weeks in 2017. After three to four months of marriage, [Mr C] stopped supporting her financially and she has been financially supported by the sponsor. Her uncle collects rent from her father’s properties and gives it to her and gives her money sent by the sponsor. Her uncle brings her groceries and arranges medical treatment as required. In January 2018 she moved to live with her mother and siblings in the family home.  When her mother and siblings came to Australia, she continued to live in the family home. She continues to live in her family home. Her relationship with [Mr C] is ‘nominal’ and she and her child are dependent on her parents emotionally and financially.

12. [The applicant] told the Tribunal the following: she was forced into an arranged marriage by her grandfather and she was against it.  After her marriage to [Mr C], she lived in his house for a time and for three months things were alright.  After that [Mr C’s] family didn’t treat her well. She was asked to do things she had not done at home, including cleaning and cooking and was criticised. She then lived between [Mr C’s] house and the sponsor’s house. [Mr C] returned to Pakistan to obtain a passport for [their son] but she can’t remember when that was. When he returned, she went back to his house and they were together on and off. In 2018, she and [her son] finally moved to live in the sponsor’s house and he supports them. She was willing to ‘go along with her mother’ to obtain the passport (for [her son]) because she wanted to travel with her mother ‘to escape here’ but that didn’t happen. [Mr C] has never supported her and she and [her son] have always been supported by the sponsor. She has occasional communication with [Mr C] with the last time being about wo months ago. At that time her uncle called [Mr C] and handed her the telephone but [Mr C] hung up and she can’t remember when she spoke with him prior to that time.

13. In a statutory declaration dated April 2020, [the applicant’s] sister [Ms B] stated the following. She was engaged to her cousin against her will. She resisted the engagement and the marriage didn’t go ahead. This resulted in criticism from family members and her grandfather does not speak to her. [The applicant] also became engaged and married against her will. After her marriage she was forced to live with her husband and in-laws and to stop studying. She was forced to do all the home duties and criticised when she made errors. Her husband works in [Country 1] and has returned once. Because of the treatment she received from [Mr C’s] family she is living in her parent’s home.  She is supported financially from income her father receives from his inherited property in Pakistan and from money her father sends her. [Ms B] told the Tribunal the following: [the applicant] lives alone and her education has been disrupted. She is sad and unhappy.  She wants [the applicant] and [her son] to be reunited with their family in Australia.

14. [Ms A] told the Tribunal the following: [the applicant] is living alone with [her son] and is a child herself. She is young, lonely and missing her family who are all suffering because of their separation.

15. The migration agent told the Tribunal the following: [the applicant] is dependent on her parents. She married young and the marriage is not recognised in Australia.  She is a victim of a forced marriage and she and [her son] are dependent on the sponsor.

    Other considerations

16. The Tribunal discussed with the sponsor various written statements provided to it which were written in English. It asked the sponsor whether the authors of the statements could speak, write and understand English.  The sponsor told the Tribunal that the witnesses told the migration agent what they wanted to say and he wrote the statements. The Tribunal told the sponsor that it would be more appropriate for the authors to write their statements in their own words and language and then for those statements to be translated by an authorised person.  It explained to the sponsor that, the purpose of third-party statements is to obtain individual, spontaneous and accurate information.  The Tribunal is concerned that obtaining third-party statements in this manner may not record the author’s information accurately.

1. The Tribunal told the sponsor that the Department has provided information to the Tribunal in its file and issued certificates pursuant to s.375A of the Act. He was told that various 375A certificates were issued and then revoked as follows:

   ·The first certificate was issued on 13 December 2017, this certificate required the Tribunal to do all things necessary to ensure that the document or information is not disclosed to any other person. The reason stated in the certificate for the non-disclosure is that to disclose would be contrary to public interest because folios 605-615 contain information about the confidential interview between the dependent applicant [named] and an AFP officer.

   ·On 27 February 2020, the Department revoked the certificate dated 13 December 2017. On the same date the Department issued another 375A certificate. The reason stated in the certificate for the non-disclosure is that to disclose would be contrary to public interest because folios 605-615 disclose or enable a person to ascertain the existence or identity of a confidential source of information.

   ·On 3 March 2020, the Department revoked the certificate dated 27 February 2020. On 3 March 2020, the Department issued a 375A certificate. This certificate requires the Tribunal to do all things necessary to ensure that the document or information is not disclosed to any other person. The reason stated in the certificate for the non-disclosure is that to disclose would be contrary to public interest because folios 373 - 378 and 605-615 disclose or enable a person to ascertain the existence or identify of, a confidential source of information.

2. The sponsor was told that the Tribunal is satisfied that the certificate is valid.  The sponsor was invited to comment on the validity of the certificate.

3. The sponsor was told that the core of the information the subject of the certificate had been declared in the delegate’s decision record at page 4, which he provided to the Tribunal.  The core of the information is that on [a day in] May 2017, during a Departmental interview [the applicant]  declared that her marriage was arranged by her paternal grandfather and that she is living at her husband’s house since her marriage and was (at that time) [number] months pregnant.  

4. The sponsor was also told that other information related to interviewing methods used during the interview and were not relevant to the review. However, it is recorded that the AFP stated that she/he thought [the applicant’s] marriage was forced. The sponsor did not make any comment on the validity of the certificate.

5. This decision record is a synopsis of the evidence before the Tribunal. The Tribunal considered the evidence individually and completely. It considered the evidence about [the applicant’s] circumstances at the time of visa application. At that time [the applicant] was [age]. She was living in the sponsor’s home in Pakistan with [Ms A] and her siblings. She was attending school and was financially supported by the sponsor. At the time of application, [the applicant] was not married. She didn’t marry until 2016, almost three years after the time of application. The Tribunal is satisfied that at the time of application, [the applicant] had not turned 18 and as a result was the dependent child of the spouse of the family head as defined by r.1.12(b).

6. As a result, at the time of visa application, [the applicant] was a ‘member of the family unit’ of, and made a combined application, with a person who satisfies the primary criteria in Subdivision 309.21. Therefore [the applicant], the first named visa applicant, meets cl.309.311 of Schedule 2 to the Regulations.

7. As the Tribunal has found that the first named visa applicant meets cl.309.311, the Tribunal directs that the second named applicant be considered against the relevant criteria for the grant of the visa.

8. The Tribunal has not considered the validity of the marriage between [the applicant] and [Mr C] nor has it considered whether [the applicant] and [Mr C] are spousal partners.

9. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for Subclass 309 visas.

   DECISION

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

    ·cl.309.311 of Schedule 2 to the Regulations; and

    ·            the second named visa applicant be considered against the relevant criteria   

    for the grant of the visa.

    Helena Claringbold
    Member