1819561 (Migration)

1819561 (Migration) [2022] AATA 2356 (11 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mrs Marina Sheryl Collins (MARN: 0745615)
CASE NUMBER:  1819561
MEMBER:Justine Clarke
DATE:11 May 2022
PLACE OF DECISION:  Melbourne
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
·cl 309.221 of Schedule 2 to the Regulations

Statement made on 11 May 2022 at 11:27am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – lesser level of face-to-face contact comes about because of the parties living in separate countries – sponsor’s medical condition – parties displayed a detailed knowledge of each other – parties are validly married – applicants are currently in a genuine spousal relationship – evidence of long-term commitment to a spousal relationship – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F, 65, 359AA, 359A, 375A, 376
Migration Regulations 1994, r 1.15A; Schedule 2, cls 309.211, 309.221
CASES
El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840
He v MIBP [2017] FCAFC 206
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
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

This is an application for review of a decision made on 7 June 2018 by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).
On 27 June 2017, when the visa applicant, [Mrs A], applied for the visa, she was [age] years of age. At the time of this decision, she is [age] years of age. The visa applicant is a national of Pakistan.
The visa applicant applied for the visa based on her relationship with her sponsor, the review applicant [Mr B] (also spelled [Mr B’s alias])[1]. At the time of application, the sponsor was [age] years of age. At the time of this decision, he is [age] years of age.
[1] See Form 40SP—Sponsorship for a partner to migrate to Australia and the Record of Responses to Sponsorship for a partner to migrate to Australia, both of which are on the Department’s file. In the latter, the review applicant stated that ‘[Mr B’s alias] is the Pakistani version of the [applicant’s first name]’.
At the time of application, 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. The primary criteria include cl 309.211 and cl 309.221.
The review applicant provided the Tribunal with a copy of the primary decision. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 and cl 309.221 of Schedule 2 to the Regulations because the delegate considered that the information and evidence submitted in support of the application was not sufficient to demonstrate that, at the time of application on 27 June 2017 and at the time of the delegate’s decision made on 7 June 2018, the visa applicant satisfied the definition of spouse under s 5F of the Act.
On 5 July 2018, the review applicant applied to the Tribunal for review of the refusal decision. The review applicant was represented in relation to the review.
On 5 August 2021, pursuant to s 359(2), the Tribunal invited the review applicant to provide further information in support of the claims that he and his partner are in a spouse or de facto relationship. The Tribunal requested the information be provided by 19 August 2021 and outlined the consequences of failing to respond or request an extension of time by this date.
On 19, 20 and 23 August 2021, the applicant submitted further evidence in support of the case.
Due to the COVID-19 pandemic, the Tribunal did not hold an in-person hearing. On 13 January 2022, the Tribunal wrote to the review applicant, by way of the representative, inviting him to a video hearing on 2 February 2022.
On 2 February 2022, the Tribunal wrote to the review applicant, by way of the representative, attaching a copy of:
·the notice dated 22 October 2021 revoking the s 375A non-disclosure certificate dated 8 August 2018 pertaining to Department [file]; and
·the s 376 non-disclosure certificate dated 22 October 2021 pertaining to Department [file].
The letter relevantly stated:
At the hearing today, the Tribunal will discuss the revocation notice and the s 376 certificate with you.
The Tribunal will invite you to make submissions regarding the validity of the s 376 certificate.
The Tribunal has the discretion to disclose the information the subject of the certificate to you, or the Tribunal may withhold the information, having regard to any comments raised by the delegate in the certificate. Accordingly, the Tribunal will also invite you to make submissions if you wish to request the Tribunal to exercise its discretion pursuant to s 376(3)(b).
The Tribunal must also comply with s 359A or s 359AA, that is, give you clear particulars of information that is adverse to the case and invite you to comment on or respond to the information. The Tribunal will comply with its obligations pursuant to s 359A or s 359AA.
Later in the day on 2 February 2022, the review applicant appeared, by video, before the Tribunal to give evidence and present arguments. The visa applicant, [Mrs C](the review applicant’s mother), [Mrs D] (the visa applicant’s sister) and [Ms E] (the visa applicant’s sister) also attended by video, prepared to give oral evidence. ([Mrs C] was at the same location as the review applicant and [the sisters] were together at a different location). The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages. The representative also attended the hearing by video, from a separate location. As the hearing could not be completed within the allocated time, the hearing was adjourned until 10 February 2022.
On 10 February 2022, the Tribunal received oral evidence from the review applicant, the visa applicant, [Mrs C], [and the sisters]—all by video. Again, the Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages and the representative attended the hearing by video.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue for determination is whether both, at the time of application on 27 June 2017 and at the time of this decision, the visa applicant and the review applicant were and are spouses for the purposes of the Act.
Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. In making findings about the status of the parties’ relationship at the time of application, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.
Whether the parties are in a spouse or de facto relationship
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.
The visa applicant claims to be the spouse of the review applicant who is an Australian permanent resident. The Department’s file contains a copy of a page from the review applicant’s passport evidencing that he has been granted a Subclass 111 visa. From the evidence before it, the Tribunal is satisfied that the review applicant is an Australian permanent resident.
‘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 a married couple 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 about these matters, regard must be had to all 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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
The Department’s file contains a copy of the Nikah Nama (including the English translation).
The review applicant and the visa applicant claim to have married each other [in] September 2015 in [Town 1], Rawalpindi, Pakistan.
The parties claim that, prior to the marriage, the review applicant converted to Islam and performed a name change from ‘[Mr B’s first name]’ to ‘[Mr B’s alias]’ in Pakistan.[2] A copy of the marriage registration certificate from the Government of Khyber Pakhtunkhwa, Pakistan, issued [in] October 2015 is on the Department’s file. It is claimed that the review applicant is registered under the name ‘[Mr B’s alias]’ in the marriage registration certificate. In the primary decision, the delegate noted that there was no evidence that the review applicant had officially changed his name in Australia. Notwithstanding, the delegate did not express any concern that 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). Indeed, some notes on the Department’s file state that the marriage is recognised under Australian law. Accordingly, it appears to the Tribunal that the delegate was satisfied that the marriage was valid and there is nothing in the information before the Tribunal to cast doubt on the validity of the marriage.
[2] The review applicant’s 50 Rupees statutory declaration, on the Department’s file, gives particulars.
On the evidence before the Tribunal, the Tribunal is satisfied that 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).
Regulation 1.15A(3) factors
Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the person’s commitment to each other.
In assessing these issues, the Tribunal has had regard to all documents on the Department’s file and the Tribunal’s file as well as to the oral evidence given at the hearing held on 2 and 10 February 2022.
The Tribunal notes that in this review application the review applicant submitted a great number of further documents, including: financial evidence such as some of the review applicant’s payslips from 2017 and 2018 and receipts for remittances to the visa applicant for various dates in 2019, 2020 and 2021; evidence of the claimed social aspects of the relationship such as statutory declarations and statements from a number of members of the visa applicant’s family and evidence of the claimed commitment between the parties such as further statements made by the parties and text records and screenshots of the parties’ communication through WhatsApp.
The non-disclosure certificate made pursuant to s 376
As noted above, the Tribunal’s file contains a non-disclosure certificate made pursuant to s 376 of the Act. It also contains a revocation certificate, dated 22 October 2021, revoking a non-disclosure certificate purportedly made on 8 August 2018 pursuant to s 375A of the Act.
These reasons do not mention further the non-disclosure certificate purportedly made pursuant to s 375A of the Act because it has been revoked.
The non-disclosure certificate made pursuant to s 376 relevantly states:
I notify the Administrative Appeals Tribunal that s 376 applies to the document(s)/information contained in folios 243 to 244 of file [number] because it was given to the Minister, or to an officer of the Department, in confidence, and section 375A does not apply.
(a) Folio(s) 243 to 244: discloses, or enables a person to ascertain the existence or identity of, a confidential source of information.
With respect to the certificate, the Tribunal must:
- assess the validity of the certificate;
- accord procedural fairness, including disclosing the existence of the certificate to the review applicant, providing him with a copy of the certificate and affording him with an opportunity to make submissions about the validity or otherwise of the certificate because if the Tribunal determines that the certificate is not valid, it may disclose the documents or information to the review applicant;
- if the Tribunal considers the certificate to be validly made, afford the review applicant an opportunity to seek a favourable exercise of the discretion in s 376(3)(b), that is, the Tribunal’s discretion to disclose, to the review applicant, the information subject to the s 376 certificate; and
- comply with the procedural code, including complying with s 359A or s 359AA, that is, giving the review applicant clear particulars of information that is adverse to the case and inviting him to comment on or respond to the information.
The certificate contains both a date and a signature by the delegate, as required by El Jejieh v Minister for Home Affairs (No 2) [2019] FCCA 840. Having reviewed the certificate and the material sought to protected from disclosure, the Tribunal finds that the certificate was validly made.
As has been explained, the Tribunal provided the review applicant with a copy of the certificate on the morning of the hearing.
Prior to the conclusion of the hearing on 10 February 2022, the Tribunal discussed the certificate with the review applicant, including putting the protected information to him for comment or response pursuant to the process outlined in s 359AA of the Act.
The review applicant did not seek to make submissions about the validity of the certificate or seek a favourable exercise of the discretion in s 376(3)(b). Rather, the review applicant’s focus was to respond to the adverse information.
The Tribunal explained that the Department’s file contains a file note written by a Departmental officer recording an allegation received by an anonymous source. The Tribunal explained that it is not entirely clear from the file note when the allegation was received or when it was written up. The Tribunal continued, stating:
The Tribunal has not made up its mind about the information.
The particulars of the information are that:
·your relationship with your wife [Mrs A] is contrived so that she may achieve a positive migration outcome, and that you have never been in a relationship and have no intention of being in a relationship together.
·You, Mr [B], are in a relationship with someone else, specifically [Mrs A]’s sister [Mrs D].
Next, the Tribunal explained the reasons why the information is relevant to the review and the consequences of the information being relied on in affirming the decision that is under review. Then, the Tribunal orally invited the review applicant to comment on or respond to the information, advising him that he may seek additional time to comment on or respond to the information.
The review applicant responded by stating that the allegation was ‘absolutely ridiculous’ and that he was annoyed by it. He said that he had a family relationship with [Mrs D], that she had helped him through bad times. He appeared to be genuinely astonished by the allegation, saying, ‘I don’t know anyone who would say it. I’m perplexed by it’. As the news continued to sink in, he stated that he was ‘livid’. He said, ‘Am I not allowed to talk to her sisters? I talk to them. They’re wonderful.’ He said that the allegation was hard to hear and that he felt bad for [Mrs D].
The Tribunal found the review applicant to be credible in his response and, as will be explained, in all his oral evidence about his partner relationship with the visa applicant. The Tribunal gives the anonymous allegation no weight. The Tribunal has formed the view that the source made the allegation out of malice.
Accordingly, the Tribunal considers that none of the information in the earlier-mentioned folios is relevant to the issues in this review. The information in these folios is not the reason, or part of the reason, for affirming the decision under review. The Tribunal considers that it has complied with its obligations with respect to the s 376 certificate and s 359AA of the Act.
The financial aspects of the relationship
Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.
Both the review applicant and the visa applicant gave consistent oral evidence about the review applicant’s employment (the Tribunal notes that the review applicant also submitted a number of documents verifying his employment such as a signed letter from his employer, tax returns and payslips). They also both gave consistent oral evidence that, at the time of the hearings, the visa applicant was not working but that she had previously [worked].
Each person was able to provide quite detailed evidence about the other’s employment. For example, the review applicant said that despite the visa applicant having a Master’s degree, it was quite difficult for her to get work in Pakistan and that the pay was not very much. He said that her last period of work had been at the [same employer] where her mother was [working] but that her mother has since retired.
There is no evidence before the Tribunal that, either at the time of application or at the time of this decision, the review applicant and the visa applicant jointly owned or own real estate or other major assets; that they had or have any joint liabilities; or that one person in the relationship owed or owes any legal obligation in respect of the other.
With respect to any pooling of financial resources, at the hearing, the Tribunal noted the documentary evidence that had been submitted evidencing that the review applicant has sent money to the visa applicant and asked each party to tell the Tribunal about that.
The review applicant told the Tribunal that he regarded it as his duty as a husband to look after the visa applicant and that he took that duty seriously. He said that he did not want the visa applicant to be a burden on her family and noted that it would be looked upon badly if he did not provide for the visa applicant. He said that he was paid well, and that AUD 500 or AUD 1000 was a lot of money in Pakistan. He said that the money he sends is not just for the visa applicant but can be used to help her parents as well.

He also gave detailed evidence about how he made the payments, noting how frequently he was paid each month and made payments to the visa applicant. He said that the amount sent may vary, noting that at Eid, the visa applicant would need to buy for her younger siblings so he would send her more money then. He said that he understood the culture and sent more money when it was required, noting the example of the visa applicant attending a wedding and requiring a new dress. That said, he said that most of the time he sends AUD 550 per month to the visa applicant as that amount suits her.
The visa applicant gave broadly consistent oral evidence, telling the Tribunal that the review applicant supported her financially, even though she told him that he did not have to do so given that she lives with her parents in the family house. She told the Tribunal that the amount sent varied.
The Tribunal notes that some documentary evidence was submitted to both the Department and the Tribunal to corroborate the claims that the review applicant sends money to the visa applicant to support her financially. The Tribunal notes that there is evidence of transfers having been made at various dates in 2016, 2017, 2019, 2020 and 2021. Unlike the delegate, the Tribunal gives weight to such evidence. The Tribunal considers that evidence of the review applicant sharing his finances with the visa applicant is suggestive of a genuine and continuing partner relationship, especially in the circumstances where one of the parties to the relationship, here the visa applicant, is not working.
The Tribunal acknowledges that, both at the time of application and at the time of this decision, the parties were and are living in different countries, and that there have been only a few short periods of time when they have lived together (discussed in the section below). Accordingly, their physical separation means that they have had limited opportunities to share their day-to-day household expenses. Notwithstanding, both parties told the Tribunal that there had been some sharing of day-to-day household expenses when they had lived together in Pakistan. Both the review applicant and the visa applicant gave credible oral evidence that the review applicant had paid for most things. In the review applicant’s words, ‘I paid for everything. I wouldn’t have her pay. I’m old school. I wouldn’t let her. I gave money to her father or [brother]. [Her brother] did a lot, organising things’. Similarly, the visa applicant told the Tribunal that, mostly, the review applicant had paid for everything but that sometimes her family, who were with them, would not let him pay.
The Tribunal found both the review applicant and the visa applicant to be very credible and accepts their oral evidence regarding the financial aspects of their relationship.
The Tribunal accepts and gives weight to the evidence that the review applicant has been sending money to the visa applicant for many years and that when they have been living together in Pakistan that he has also provided for her financially. Accordingly, the Tribunal gives some weight to the evidence of the financial aspects of the relationship.
The nature of the household
Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.
There is no evidence before the Tribunal that the review applicant and the visa applicant have any children together. Both the review applicant and the visa applicant told the Tribunal that the review applicant has three children from his previous marriage who are all adults. The visa applicant was able to name and provide the age of each of the review applicant’s children. Both the review applicant and the visa applicant told the Tribunal that the visa applicant had been introduced to each of the review applicant’s children online but that, at this stage, it had been difficult for them to form a real relationship given that they had not met in person, the review applicant’s children do not live with him and the time difference between the countries makes live conversation difficult. Notwithstanding, the review applicant was confident that ‘they’ll welcome her with open arms’.
The Tribunal finds that, both at the time of application and at the time of this decision, there was and is no joint responsibility for the care and support of children.
With respect to the living arrangements of the persons, both the review applicant and the visa applicant gave consistent oral evidence about each of their living arrangements at the time of the hearing.
Both acknowledged that they were living in different countries. They told the Tribunal that, in the past, the review applicant had lived in an apartment but that he had had to sell it and was living at a specific property in a named western suburb of Melbourne—his mother’s house. The review applicant explained that he lived in a self-contained [bungalow]at the back of the property; that he did not pay board but that he was paying the bills and that his mother had facilitated this arrangement so that he could re-establish himself. He said that he was working towards having a deposit to buy a friend’s property in another named suburb in Melbourne. He was not sure when he had started living at his mother’s property but thought it may have been at the end of 2018 or the start of 2019. Both the review applicant and the visa applicant also told the Tribunal that the visa applicant’s sister [Mrs D] and her two teenage sons also lived at the address, in the house with the review applicant’s mother. However, both said that [Mrs D] spent most of her time at her sister [Ms E]’s house. The visa applicant told the Tribunal that the review applicant’s mother had asked [Mrs D] and her sons to come and live at the property and that her sister was paying rent.
Both the review applicant and the visa applicant gave consistent oral evidence that the visa applicant was living at her parents’ house in Peshawar, Pakistan.
The Tribunal asked each party if they had lived together. They each replied that they had.
The review applicant explained that he had lived with the whole family, saying, ‘that is how it works over there’ and that the visa applicant’s father has ‘the run of the household’. He said that, while he would love to visit Peshawar and see where the applicant had been raised and attended school, as a Westerner, it was difficult for him to go there. He said that, instead, he visited the family in Islamabad, which he described as being like Canberra as it is ‘controlled and clean’. He said that they rented a house in Islamabad—'with every member of the family’. He said that, because it was so hot, they had also travelled and stayed at [Town 1]. He said that, in March 2018, on his second trip to Pakistan, they had stayed at [an area], which is outside of Islamabad. However, he said that, because it was so far, they had then moved to the outskirts of Islamabad. He said that, on his third trip to Pakistan, they had stayed at a house in Islamabad.
The visa applicant gave broadly consistent oral evidence, although she described the accommodation as ‘hotel rooms’. The Tribunal is not troubled by the different terminology used as it is clear to the Tribunal that both persons meant that they were staying in rented accommodation rather than property owned by the visa applicant’s family.
In the primary decision, the delegate was critical that, on the first trip, ‘the parties did not spend more than 3 days together as a married couple’ and that:
The sponsor returned to Pakistan approximately two and a half years later, on [date] March 2018 and stayed in Pakistan for 8 days before he returned to Australia. Both times the sponsor visited, he stayed at a hotel.
Having had the opportunity to ask many questions of both the review applicant and the visa applicant over a very lengthy hearing that spanned two different dates, the Tribunal does not share the delegate’s concerns about the parties’ living arrangements. Rather, the Tribunal found both the review applicant and the visa applicant to be very credible. It is clear to the Tribunal that they are both respectful of the visa applicant’s culture and sought to spend time together in a way that was culturally appropriate but also meaningful to them. For example, the visa applicant said that, prior to the Rukhsati (cultural ceremony), in her culture it is not considered appropriate for the groom and bride to spend time together but that, ‘when we went to the market, [Mrs D] would be there to help us’. The review applicant said that they were ‘never left alone for a second’ but would try to ‘sneak into different places’, explaining that it was considered culturally inappropriate to display physical affection such as holding hands in front of the visa applicant’s father or older brother but that it might be possible to do that in front of the younger brothers. He explained further, ‘[s]ometimes the sisters created a barrier so we could walk down the street and hold hands. I had to learn to accept the culture’.
The Tribunal notes that it has reviewed the review applicant’s movement records, a copy of which is on the Tribunal’s file. This evidences that, since the review applicant’s first contact with the visa applicant, he has departed Australia on three occasions.
·First trip: The review applicant departed Australia [in] August 2015 and re-entered [in] September 2015. The parties married [in] September 2015.
·Second trip: The review applicant departed [in] March 2018 and re-entered [in] March 2018. (The delegate made the refusal decision on 7 June 2018).
·Third trip: The review applicant departed Australia [in] September 2018 and re-entered [in] September 2018.
The Tribunal asked both parties for the reasons why, after marrying, the review applicant made such a limited number of trips to visit the visa applicant.
The review applicant gave very credible and detailed oral evidence in response, noting that he had been transitioning from one job to another, that he has a large role which he takes seriously, that he could not take holidays ‘willy nilly’, that he had to be realistic financially and also that there is only a very small opportunity to visit Pakistan when the weather is good—not 43- or 45-degree days of heat or freezing cold. He said, ‘It all comes down to the timing. I did speak to her umpteen times’. He concluded by stating:
I would have gone back many times since now. I get frustrated. I want to be able to hold her. It kills. I’ve broken down many times. You are suffocated because you can’t be there. You get sick of it. It is really hard. I’d love to go there – the moment we have the safety to go there.
The Tribunal accepts the review applicant’s oral evidence.
The visa applicant said that the review applicant had travelled to see her in Pakistan on three occasions. She thought that he had stayed for 10 days on the first trip (when they married) and that each subsequent trip was for about 10–12 days. While the visa applicant’s oral evidence is that the review applicant had stayed for longer periods than is evidenced by the movement records, the Tribunal has no concerns about the visa applicant’s credibility. Rather, the Tribunal considers it entirely plausible that she mis-remembered the periods of the stays, especially given that they were a number of years ago.
The Tribunal observed the visa applicant wipe away a tear when responding to the Tribunal’s question about why the review applicant has taken only a limited number of trips to visit her. She said that the review applicant had really wanted to come but had not been able to come, including because he has high blood pressure and she had told him not to come because of his health issue. She noted that he had had a plan to visit and then explained that his plan had been disrupted by a ‘lockdown’ and airports being closed. She said that their current plan depended on her being granted the visa. If she is granted the visa, she will come to Australia. If not, the review applicant will meet her in Pakistan.
The Tribunal also found the visa applicant to be very credible and accepts her oral evidence in this regard.
The Tribunal finds that there have been a number of reasons why the review applicant has been unable to return to Pakistan to visit the visa applicant. The fact that the review applicant has taken only a limited number of trips to visit the visa applicant does not concern the Tribunal the way it concerned the delegate. In the Tribunal’s view, it is not a reason to affirm the decision under review.
Based on the evidence before it, the Tribunal finds that, since committing to their relationship and when they have been physically present in the same country, the review applicant and the visa applicant have lived together in the same premises. Further, the Tribunal finds that they intend to live together as husband and wife in Australia. For example, the visa applicant gave oral evidence that the review applicant had told her that ‘he’d build a separate house for us and we’d live together’.
The Tribunal asked the parties about any sharing of the responsibility for housework. They each gave detailed and broadly consistent oral evidence about the arrangements when the review applicant had visited the visa applicant in Pakistan and their plans for life together in Australia.
With respect to food shopping, the review applicant said that this was mainly done by the visa applicant and her sisters. Similarly, the visa applicant said that this was ‘mostly by us’, which the Tribunal understands to be a reference to her family of origin, especially since she noted that the review applicant had wanted to ‘chip in’. With respect to cooking, they both said that most of the cooking was done by the visa applicant’s family. The visa applicant noted that the review applicant loves cooking, but she said that her culture has respect for the guest and so would only let him cook once. The review applicant said that he had wanted to make his version of risotto. With respect to cleaning, the review applicant said that he tried not to be a burden and did not want to assume that the women would do this but most of the time they would. The visa applicant said that such work was done by the women.
When asked whether there would be a change to these arrangements if living together in Australia, the review applicant stated:
I’m very liberal in that sense. I don’t expect her to be a slave. She will want to push into that role but here, we share the load. I want her to understand those things. I want it to be equal.
Similarly, the visa applicant said that they had discussed this and that the review applicant had told her that division of responsibility for housework was different in Australia than what she was used to in Pakistan, and that men can contribute to cooking. She said that the review applicant had poor health, which worried her, and that she wanted to care for him but that ‘he has made it clear that he wants to help me’.
The Tribunal notes that, like in many partner cases that come before the Tribunal, there is no photographic or third-party evidence to corroborate the parties’ claims about the sharing of the housework. Notwithstanding, the Tribunal found both the review applicant and the visa applicant to be very credible and accepts their oral evidence. The Tribunal gives some weight to the parties’ consistent oral evidence about the responsibility for housework during the times they lived together and their plans for the arrangements in Australia.
The Tribunal gives some weight to the evidence of the nature of the household.
The social aspects of the relationship
Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.
With respect to whether the persons represent themselves to other people as being married to each other, the Tribunal notes that, in the jointly signed relationship statement, which is on the Department’s file, it was claimed:
Pakistan is a conservative country when it comes to going out together as a couple, but socially [Mr B] and I are accepted as husband and wife with the full support of my parents and siblings. When we married in September 2015, [Mr B] and I went everywhere together and [Mr B] was acknowledged as my husband.
In addition, each person made similar statements in their individual statutory declarations which are on the Department’s file: the review applicant’s statutory declaration of 20 February 2018 and the visa applicant’s 50 Rupees statutory declaration.
In the primary decision, the delegate made the following comments with respect to whether the persons represent themselves to other people as being married to each other.
I note that the applicant and sponsor have submitted photographs from the wedding ceremony demonstrating that the wedding was conducted during a small family gathering. Furthermore, the parties have provided photographs from their time spent together in Pakistan, also with third parties present. I give this some weight when considering the social aspects of the relationship.
However, later the delegate stated, ‘there is no evidence before me that would indicate that the sponsor has met the applicant’s relatives in Pakistan’.[3] The delegate also stated ‘[n]o other evidence has been provided in order to demonstrate that the parties have significant social recognition or are representing themselves to the wider community in both Pakistan and Australia as a married couple’. The delegate went on to state, ‘I have concerns as to whether the parties are socially recognised in Pakistan and Australia’.
[3] Despite also having noted the 50 Rupees statutory declaration made by the visa applicant’s sister [on] ‘26-02-2018’ where she discusses having met the review applicant.
In this review, the Tribunal does not share the delegate’s concern as to whether the parties are socially recognised in Pakistan and Australia, as the Tribunal finds that they are socially recognised as being married to each other in both countries.
In addition to giving weight to the photographs that are on the Department’s file (including from the first of two trips in 2018), the Tribunal accepts and gives weight to the review applicant’s and the visa applicant’s credible oral evidence about the extensive time they spent in the company of the visa applicant’s family on the review applicant’s three trips to Pakistan.
The Tribunal also notes that the visa applicant did submit evidence to the Department of social recognition of the relationship by another in the broader community in Pakistan, namely the 50 Rupees statutory declaration made by [name deleted] on ‘26-02-2018’.
On 20 June 2017, both the review applicant’s eldest daughter and the visa applicant’s sister [Mrs D] made Form 888 statutory declarations. Both declared their knowledge and support of the relationship.
In this review, the review applicant also submitted statutory declarations or statements from:
·the visa applicant’s sister [Mrs D] made on 17 August 2021 and the visa applicant’s sister [Ms E] made on 19 August 2021—both in Australia; and
·each of the visa applicant’s parents, two of her brothers, two of her sisters (including [name deleted] who had made a statement earlier) and a brother-in-law—all in Pakistan.
The Tribunal also had the benefit of hearing oral evidence from the visa applicant’s sisters [Mrs D] and [Ms E] and from the review applicant’s mother. The Tribunal accepts and gives weight to all this evidence and finds that the review applicant and the visa applicant represent themselves to their families as being married to each other.

In the primary decision, the delegate had stated:
During the in-person interview the applicant stated, ‘our relatives live there (Peshawar) and are not happy about our marriage’. Later on, in the same interview, the applicant stated, ‘I have taken this big step as everyone was against this marriage’.
At the hearing, the Tribunal asked both the review applicant and the visa applicant about this. The review applicant said that the visa applicant’s direct family were not the issue. He said that he thought that it was visa applicant’s cousins (the daughters of the visa applicant’s mother’s sister) and that they may have had an issue ‘because I’m a white guy’. The visa applicant said simply that some in her family were not happy about the marriage because they were jealous that the review applicant is good looking and that they had wanted the visa applicant to marry on their side of the family. She said that her parents like the review applicant ‘and so do I’.
The Tribunal asked the review applicant whether his friends were aware of the marriage and he said that his best friend, [was] aware and may ask him about the relationship. He gave poignant oral evidence about the difficulty of the topic being brought up when the visa applicant lives offshore.
When asked, the visa applicant said that there were not more statements from the review applicant’s family in Australia because everyone is busy and not living together. She said that there were no issues about acceptance of the relationship and that everyone in the review applicant’s family is excited and happy about the relationship. She said that the review applicant’s children want to see him happy.
The Tribunal accepts both party’s credible oral evidence about all these matters.
With respect to the opinion of the persons’ friends and acquaintances about the nature of the relationship, the Tribunal considers that the review applicant’s mother [Mrs C] and the visa applicant’s sisters [Ms E] and [Mrs D] all gave very credible oral evidence.
[Mrs C] said that she wished the visa applicant could come to Australia because she is a really lovely person and that the visa applicant would be welcomed into her family by all her family. She said that she wished that the review applicant had met the visa applicant earlier as he was a different man now, a truly happy man. She said that she probably spoke to the visa applicant about once a week but that it was a quick conversation as she acknowledged that she ( [Mrs C]) spoke quickly and had a pronounced English accent. She said that she was ‘100%’ of the opinion that the relationship between the couple was a genuine and continuing one, noting that the visa applicant always smiles and seems happy when she sees the review applicant on the screen. She pleaded with the Tribunal to let the two be together so that they could both be happy. At this point in the hearing, she broke down and cried. She said that she wanted her son to be happy and that she only sees him happy and laughing when he is speaking to the visa applicant. She said that she knew that the visa applicant would make the review applicant happy. She said that the visa applicant’s father had invited her to visit the family in Pakistan and that she would like to go. She described the visa applicant’s family as a beautiful family and said that she felt blessed.
[Ms E] explained that she was one of the visa applicant’s older sisters. She said that the relationship between the review applicant and the visa applicant was ‘definitely genuine and real’. She said that all the sisters in her family were loyal in their relationships. She broke down and cried when explaining how hard it had been on the parties. She said that often she receives phone calls from the visa applicant and the visa applicant cries because she and the review applicant cannot be together. She said that it was very hard for the visa applicant because she loves children and wants a big family. She said that the visa applicant had witnessed all her sisters marry at 19 or 20 years of age and that she worries about being able to start a family of her own. She said that she found it unbearable to hear the visa applicant in such a state but that she tries to calm and strengthen her. She called on the Tribunal to make a favourable decision, stating that the relationship has stood the test of time.
[Mrs D] said that she was also one of the visa applicant’s older sisters. She said that she has no doubt that it is a genuine and continuing relationship. She also wiped away tears when commenting on the relationship and when requesting that the couple be given a chance, particularly when they have been physically apart for so long.
The Tribunal gives great weight to the credible oral evidence of [Mrs C], [Ms E] and [Mrs D] that they believe the review applicant and the visa applicant to be in a genuine and continuing relationship.
With respect to any basis on which the persons plan and undertake joint social activities, both the review applicant and the visa applicant gave broadly consistent oral evidence about how they had spent their time together when the review applicant had visited the visa applicant in Pakistan. The review applicant said that they had attended many markets, including the one in [Town 1] which is open 23 hours. He said that he loves the culture and the religious factors. He said that they had spent a lot of time together. The visa applicant said that they had gone exploring together: shopping and for walks. She also mentioned spending time in [Town 1]. Again, the Tribunal accepts and gives weight to their credible oral evidence.
The Tribunal gives great weight to the evidence of the social aspects of the relationship.
The nature of the persons’ commitment to each other
The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.
At the hearing, the review applicant and the visa applicant gave consistent, detailed and credible oral evidence about the inception and development of their relationship.
The review applicant told the Tribunal that he has a strong interest in the Islamic religion and that his friend [name deleted], who is [Mrs D]’s ex-husband and whom he had played [sport] with, had introduced him to the visa applicant’s brothers so that he could talk to them online and learn more, and the brothers could learn more English. Both the review applicant and the visa applicant told the Tribunal how, over time, on occasion, the review applicant noticed the visa applicant in view on the screen and then started to talk to her and how a friendship developed. The review applicant said that in the end, he only wanted to talk to the visa applicant. ‘I had more stimulating conversations with her than with the brothers’. He also stated, ‘I’m fortunate that she has a strong religious teaching background. I’m fascinated by it all’. (The visa applicant said that she also discussed Islam with the review applicant).
Both said that, as the friendship developed, [Mrs D] had acted as the go-between in letting the visa applicant know that the review applicant had developed feelings for her. The visa applicant said that when she found out that the review applicant had developed feelings for her, she was very happy.
The review applicant said that he made plans to meet the visa applicant in person in 2015 and that was when ‘the magic happened’ and that the Nikah Nama (wedding) was held at the end of the trip. He said that the development of their relationship was like those who meet online, develop a relationship, and then marry.
The visa applicant said that the decision to marry was at the initiative of the review applicant, that it was not rushed and was a mutual decision. She said that they had spent time together, the review applicant had spoken to her side of the family and that time was taken to make the decision.
The review applicant gave particularly credible oral evidence that his decision to become a Muslim was a decision he had made by himself and for himself and that, from his perspective, the decision was not made because of the visa applicant.
Both persons told the Tribunal that they married on [date] September 2015 and that the visa applicant’s family had attended the ceremonies. The review applicant said that none of his family or friends had attended, explaining:
It is a long way to go. It’s very hard to ask people to do that. It was a very hard time in Pakistan because of certain issues. Normal western people wouldn’t consider going there. I’m not sure that I would have had the courage to go if a friend had asked me.
The Tribunal accepts and gives weight to the parties’ oral evidence about the inception and development of their relationship.
The Tribunal questioned each party about their knowledge of the other (for instance, where each of them comes in the birth order in their family of origin, who their closest friend or friends are and whether and what gifts they have exchanged) and their lives (for instance, what each of them likes to do in their spare time in terms of interests and hobbies) and is satisfied that they both demonstrated knowledge of each other’s lives suggestive of a couple in a genuine and ongoing spousal relationship.
Both parties spoke frankly about their significant age difference ([number] years), stating that it had not caused any issues in their relationship. Both described the review applicant as being a child at heart. The visa applicant said that, sometimes, she felt older than the review applicant. She also said that in her culture, such an age difference is not considered a big difference. She noted that her other sisters are in marriages with big age differences too.
The Tribunal has considered the parties’ respective ages, backgrounds and life experiences, and accepts that both at the time of application and at the time of this decision, neither party was nor is in a relationship with any third party.
The Tribunal accepts the parties’ oral evidence about the duration of their committed relationship throughout the years and gives weight to the evidence that, at the time of application on 27 June 2017, the parties had been married for almost two years and at the time of this decision, they have been married for over six years and 10 months.
With respect to the length of time during which the persons have lived together, as noted earlier, the Tribunal accepts the parties’ credible oral evidence about this and accordingly is satisfied that the parties have lived together as claimed, albeit for a short period of no more than a month in total.
With respect to the degree of companionship and emotional support that the persons draw from each other, the Tribunal asked the parties about how they have kept in contact while living in different countries. They gave consistent oral evidence that, at the beginning, they used [Social Media 1], for a while they used [Social Media 2] and that, at present, they use [Social Media 3]. They said that they spoke most days but that the significant time difference makes it difficult. The Tribunal accepts the parties’ credible and detailed oral evidence, which is supported by some documentary evidence, about their frequent and ongoing communication and finds that such communication suggests that, at the time of application and at the time of decision and at all intervening times, the parties had and have a genuine commitment to the relationship, notwithstanding that they have been living in different countries for almost all that time.
With respect to the degree of emotional support that the persons draw from each other, the Tribunal asked the parties about emotional support that the review applicant had given to the visa applicant. Both parties responded by saying that it was more common for the visa applicant to extend emotional support to the review applicant. The review applicant was open and honest with the Tribunal about problems he has encountered, and the Tribunal thanks him for that openness and honesty. The visa applicant said that she tried to tell the review applicant positive things such as that they will have a positive future and will be together. At this stage in the hearing, the visa applicant displayed emotion and the Tribunal instituted a break in proceedings.
With respect to whether the persons see their relationship as long-term, both the review applicant and the visa applicant said that they did see it in those terms. The review applicant noted that, previously, he had been married for 21 years. He said:
I don’t do things by short. I don’t give up on things easily. I am always a very serious person regarding the relationship I’m in and I give it everything; I respect it until the dying days.
The visa applicant said that they both believed that they would be together until their last breath, especially given they have waited so long to be together.
Both parties also gave broadly consistent oral evidence about their plans. They plan to live together and support one another. For example, the visa applicant stated that the review applicant has ongoing health problems and that it hurts her that she is not with him and able to care for him. She said, ‘I want to care for him as a wife. We’ve gone through a lot’. The review applicant also acknowledged that he knew that the visa applicant wanted children and that he wanted more children too. He said that he had spoken to a friend of his who had become a father at [the age that the review applicant is now] and had asked him how he had felt at that age.
The Tribunal accepts the parties’ credible oral evidence about these matters.
In view of the evidence that is before it, the Tribunal finds that both at the time of application and at the time of this decision, the parties provided and continue to provide companionship and emotional support to each other and that both saw and continue to see their relationship as being for the long term.
The Tribunal places great weight on the evidence of the nature of the persons’ commitment to each other.
CONCLUSION
As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.
For the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, at both the time of application and at the time of this decision, the review applicant and the visa applicant:
·had and have a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5F(2)(b) of the Act;
·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and
·did not and do not live separately and apart on a permanent basis, as required by s 5F(2)(d)(ii) of the Act.
On the basis of the above, the Tribunal is satisfied that the requirements of s 5F(2) were met at the time the visa application was made and are met at the time of this decision. Therefore, the visa applicant meets cl 309.211 and cl 309.221.
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.
Any efforts the Department of Home Affairs may make in expediting this case would be appreciated.
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
·cl 309.221 of Schedule 2 to the Regulations
Justine Clarke
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).

[2022] AATA 2356

11 May 2022

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