1929959 (Migration)

[2022] AATA 3247

1929959 (Migration) [2022] AATA 3247 (15 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1929959

MEMBER:David Crawshay

DATE OF ORAL DECISION:   15 September 2022

DATE OF WRITTEN STATEMENT:         16 September 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; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 16 September 2022 at 11:03am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Partner) – genuine and continuing relationship – marriage by proxy allowed in home country – limited financial, household and social aspects of relationship while living in different countries – involvement and approval of families and visa applicant now living with review applicant’s family – nature of commitment – voice and text communications almost daily – detailed knowledge of each other and each other’s personal life – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 12, 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

CASES
He v MIBP [2017] FCAFC 206

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. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 September 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 13 August 2018 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied that the visa applicant was the spouse of the review applicant at the time of application.

4. The review applicant appeared before the Tribunal on 15 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether is whether the visa applicant was the spouse of the review applicant at the time of application and is his spouse at the time of this decision.

   Whether the parties are in a spouse or de facto relationship

7. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who was an Australian permanent resident at the time of application and is an Australian citizen at the time of this decision.

8. “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 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. Each of the specific matters contained in r.1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal has sighted a translated copy of a certificate of marriage in respect of the parties with registration date of 4 July 2017. The certificate stated that the parties were married [in] May 2017. This marriage was conducted by proxy, with the review applicant present in Australia while the visa applicant was in Pakistan. The Tribunal accepts that real consent was given by both parties. It is also satisfied that the certificate provided is genuine and that the parties were free to marry each other.

10. The Tribunal understands that marriage by proxy is sanctioned in Pakistan. According to a country-of-origin information report issued by the UK Home Office, “proxy (telephonic) marriage is acceptable in Islam and also under the Muslim Family laws ordinance 1961”.[1] As the marriage is legal under Pakistani law, and as the Tribunal is satisfied that the consent given by both parties was real consent, it follows that it is legal under Part VA of the Marriage Act 1961 and is therefore considered to be a valid marriage under s.12 of the Act. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    [1] UK Home Office, Country of Origin Information Report – Pakistan, (17 January 2011), 31.

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

11. Based on the information in front of it, the Tribunal makes the following findings. It finds that the parties do not have any joint ownership of real estate or other major assets, nor do they have any joint liabilities. The review applicant submitted documents that purported to show that he had purchased three separate properties in Pakistan and had nominated the visa applicant as nominee for all of these purchases. When asked what this entitled the visa applicant to, the review applicant said that this made her an owner and in case of death she can claim the properties. The visa applicant said that she is co-owner of the properties.

12. In terms of the extent of pooling of resources, the Tribunal finds that the review applicant has made several money remittances to the visa applicant. It accepts this evidence and finds that these remittals represent some pooling of financial resources. There is otherwise no evidence that speaks to the extent of the pooling of financial resources or of the basis of any sharing of day-to-day household expenses.

13. Turning lastly to whether one party owes any legal obligations in respect of the other, the Tribunal refers to the above evidence concerning the three purported nominations made over properties purchased by the review applicant. While it is not satisfied that these nominations equate to ownership over the properties (so that the visa applicant is a co-owner of the properties alongside the review applicant), it accepts that the nominations entitle the visa applicant to certain rights – such as the right to acquire the properties upon the death of the review applicant. This evidence is given weight.

14. The Tribunal has considered the evidence in relation to the financial aspects of the relationship. It accepts that, while limited, this evidence is commensurate with a relationship where both parties are living in separate countries and accepts that it points to the parties being in a genuine and continuing relationship.

    Nature of the household

15. The parties have no children over whom they have joint responsibility for care and support, and this aspect is given no weight either way.

16. In relation to the parties’ living arrangements, the Tribunal finds that they have spent the vast majority of the period of their claimed relationship in separate countries – the review applicant in Australia; the visa applicant in Pakistan. There appear to be several plausible reasons for this.

17. Firstly, the review applicant has previously sought and been granted protection in Australia. A condition of his protection visa is that he was prohibited from travelling to Pakistan, and this condition only ceased upon the grant of Australian citizenship in August 2020. The delegate pointed out in her decision that the parties were free to meet in a third country. In response, the review applicant told the Tribunal that he wanted to meet the visa applicant in [Country], but her parents would not allow this. When asked why they refused, he said that it would not be socially acceptable as it would be considered taboo, as no marriage ceremony had occurred where people were invited. The visa applicant substantiated that her parents would not allow her to travel to a third country. She said that the review applicant’s father offered to travel but her parents insisted that the review applicant travel to Pakistan.

18. There are questions to be asked and answered about the response of the visa applicant’s parents to the review applicant’s request for the visa applicant to travel to a third country, as it appears to reveal that, at least at the time before November 2020, they may not be said to be socially regarded as married. This is considered below under the appropriate heading. However, for present purposes, the Tribunal accepts that the visa applicant was precluded from travelling to a third country and that this would be a reason for the parties not being able to see each other during the period leading up to November 2020.

19. Secondly, the COVID-19 pandemic has meant the closing of Australia’s borders and restrictions on Australians being able to leave and come back again. The Tribunal finds it of some significance in this situation that the review applicant subsequently made a trip to see the visa applicant in late-October 2020, returning just over three months later in early-February 2021.

20. The Tribunal accepts that this trip evidences an intention on the part of the parties to form a common household and is given some weight.

21. Moreover, both parties gave evidence that the visa applicant moved in to live with the review applicant’s family in [Town] after their wedding ceremony in November 2020 – in line with tradition. It accepts the parties’ evidence on this point and accepts that it shows an intention for the parties to form a common household. The Tribunal also accords it some weight.

22. Finally, the parties have submitted evidence of communications, including a call log from early-2019 showing almost daily telephone calls being made by the review applicant to the visa applicant, some of which lasted one hour. The review applicant also submitted a selection of screenshots of text communications between the parties from 2021 and 2022, as well as a log of calls from August and September 2022 (although this log did not provide details of the duration of the calls). At hearing, and on the review applicant’s invitation, the Tribunal read into evidence messages between the parties from recently. Although the messages were mainly in a language other than English, it nonetheless observed that they were frequent. The Tribunal accepts that these pieces of information demonstrate that the parties communicated with each other extensively during these periods, and most probably during other periods including at the time of application in August 2018. It accepts that this communication has helped to sustain the parties’ relationship during times when they have been physically apart. This evidence is given substantial weight.

23. The Tribunal has considered the evidence relating to the nature of the parties’ household and accepts that it indicates that they have not been living separately and apart on a permanent basis, and that their relationship has been genuine and continuing at all material times.

    Social aspects of the relationship

24. The Tribunal has considered evidence showing that the parties’ relationship has had extensive involvement from their families and was conducted according to tradition. The review applicant submitted what he purported to be an engagement agreement between the two parties. Although the document was in a language other than English, the Tribunal notes that the document was executed in 2015 and most likely in May 2015. Moreover, it was able to ascertain through the interpreter (who reluctantly translated parts of the document) that the review applicant and visa applicant were named as the subjects of that agreement. The Tribunal notes that both parties testified that their engagement was agreed to by their families in May 2015. It accepts that this document is evidence of both families being involved in the engagement process.

25. The Tribunal accepts that their relationship has therefore been approved by their families. As stated above, it accepts that the visa applicant moved in to live with the review applicant’s family in [Town] following the parties’ wedding ceremony in November 2020. This evidence is given weight.

26. The Tribunal has been provided with photographs of the parties together in Pakistan in 2020 and 2021, including at a ceremony that has been identified as a wedding ceremony and in Islamabad (on their honeymoon). At hearing, it was also invited by the review applicant to view a video of the parties during the visit of the groom’s convoy to the bride’s house at the time of their wedding ceremony in November 2020, and it read the contents of this video into evidence. The video showed the parties among numerous guests. This evidence is also given weight.

27. An issue for the Tribunal became the fact that the visa applicant’s parents did not allow her to travel to a third country to see the review applicant, and specifically that the reason for doing so was because it would not be “socially acceptable”. It put to the review applicant that this showed that there was not much of a social acceptance of the relationship at the time of application. He replied that it was always his intention to meet the visa applicant in a third country, but that at the time he had made the application her parents refused to allow her to travel.

28. The Tribunal has considered this information. It accepts that the parties are currently regarded as being married to each other although it does not accept that this information logically tends to show that they were regarded as such at the time of application. On the contrary, and again based on the information, it finds that such social recognition was not present at that time, and this is reflected in the response given by the visa applicant’s parents.

29. However, to what extent does this lack of social recognition bear on whether the parties’ relationship was genuine and continuing at the time of application? The Tribunal has already found that their relationship has had extensive involvement from both families. Although it is of some concern that the visa applicant’s parents appear to have worried about their daughter travelling to a third country to meet the review applicant, it accepts that this feeling is not motivated by a belief that the parties are not in a relationship or even in a married relationship but more due to the fact that certain social conventions had not been followed. In this case, these social conventions were that the parties had not yet held a wedding ceremony where their family members, friends and others were able to participate.

30. For this reason, the Tribunal has chosen to diminish the adverse weight that it would normally attach to such evidence.

31. The review applicant was asked about whether the parties have planned and undertaken joint social activities. He told it that the parties planned a honeymoon trip to Islamabad which they took with the review applicant’s sister and a niece. He said that they had their own bedroom during this trip. When asked about whether there were other examples of social activities, the review applicant said that he would mostly spend time with the visa applicant as he knew his time with her was limited. The Tribunal accepts this evidence and gives it some weight.

32. The Tribunal has considered that the evidence of the social aspects of the parties’ relationship leans slightly in favour of them being in a genuine and continuing relationship at the time of application, although it accepts that the evidence indicates that they are currently in such a relationship.

    Nature of the parties’ commitment to each other

33. At hearing, the Tribunal asked the parties how their relationship began and developed. Both parties testified to their families agreeing to their engagement in 2015 and to them commencing communicating with each other soon afterwards. Both parties stated that this communication initially occurred with the review applicant calling her fixed landline telephone in Pakistan before they moved to calling each other (including via video calls) over social media – initially Skype but then WhatsApp. Both parties told it that the review applicant bought a mobile telephone for the visa applicant. The review applicant said that this was an iPhone 6s which he purchased soon after it was released in 2015. He said that he gave the telephone to his brother, [Mr A], when he travelled over there. The Tribunal notes the commonality of the parties’ responses. It accepts their evidence on this point and gives it weight.

34. In relation to the degree of companionship and emotional support that the parties draw from each other, the Tribunal notes that the parties were able to give substantially similar responses to questions about each other’s personal lives, including the review applicant’s study and employment. It accepts based on this commonality of answers that they have a detailed and intimate knowledge of each other and each other’s personal lives. This evidence is given weight.

35. As above, the Tribunal accepts that the parties have communicated extensively with each other over a period that takes in the time of application. It gives this evidence weight. It also notes the financial support that the review applicant has given to the visa applicant. This evidence is given weight.

36. In relation to the question of whether the persons see their relationship as a long-term one, the Tribunal, the review applicant told the Tribunal that he had put a deposit for an off-the-plan five-bedroom house in [Suburb 1], a suburb near [Suburb 2]. He said that settlement for this property will occur in March 2023, and he hopes to have approval for a bank loan by then. No evidence was given to substantiate this purchase, and the Tribunal gives it reduced weight for this reason.

37. The Tribunal has considered the parties’ evidence about the nature of their commitment to each other and accepts that this evidence indicates that they have had a mutual commitment to a shared life as a married couple to the exclusion of all others, that their relationship has been genuine and continuing, and that they have not been living separately and apart on a permanent basis at the time of application and at the time of this decision.

    CONCLUSION

38. The Tribunal has considered and weighed the evidence in front of it before assessing whether the visa applicant satisfies the criteria relating to whether she has been a spouse of the review applicant. Having considered this evidence, and especially evidence showing the involvement of both families in what appears to be a traditional marriage and evidence that the parties have maintained extensive communications during the periods when they have been physically apart, it accepts that the individual requirements of s.5F(2) are all met at the time of application and at the time of this decision.

1. Accordingly, the Tribunal is satisfied that the visa applicant has been in a married relationship with the review applicant and she has been his spouse under s.5F(1) at all material times.

2. The visa applicant meets cl.309.211(2) and therefore cl.309.211 at the time of application. She meets cl.309.221 at the time of decision.

3. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

   decision

4. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl.309.211 of Schedule 2 to the Regulations; and

   ·cl.309.221 of Schedule 2 to the Regulations.

   David Crawshay
   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).