1932713 (Migration)

1932713 (Migration) [2022] AATA 3955 (27 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Justin Moyes
CASE NUMBER:  1932713
MEMBER:Meena Sripathy
DATE:27 September 2022
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.309.211 of Schedule 2 to the Regulations ; and
·cl.309.221 of Schedule 2 to the Regulations; and

the second and third named visa applicants meet the following criteria:
· cl.309.311 of Schedule 2 to the Regulations; and
· continue to be members of the family unit of the visa applicant for the purposes of cl.309.321 of Schedule 2 to the Regulations.

Statement made on 27 September 2022 at 11:32am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – long-term marriage in home country – one meeting in third country since sponsor’s departure – exclusivity of relationship – sponsor’s relationship with another woman in Australia now ceased – regular financial support – members of family unit – young adult children dependent on applicant and sponsor – long delay in processing application – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), rr 1.03, 1.05A(1), 1.12, 1.15A(3), Schedule 2, cls 309.211(2), 309.221, 309.311, 309.321
CASES
He v MIBP [2017] FCAFC 206
Huynh v MIMA [2006] FCAFC 122

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 by a delegate of the Minister for Immigration on 19 September 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (the visa applicant) applied for the visa on 24 June 2013 on the basis of her relationship with her sponsor, ([the review applicant]). The second and third named visa applicants are the daughters of the applicant and sponsor and applied on the basis of their membership of the applicant’s family unit. 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 who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.221 because the delegate was not satisfied that the applicant and sponsor continued to be in a spouse relationship at the time of the delegate’s decision. The delegate was not satisfied the applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others, in light of evidence before the Department about the sponsor’s involvement in a relationship with another woman in Australia. The delegate also referred to consideration given to the fact that the visa applicant and sponsor had not seen each other since 2013, and the sponsor chose not to accompany his son when he travelled to [Country 1] to visit the family in 2018.
On 18 November 2019 the sponsor, [the review applicant], lodged an application for review of the decision to the Tribunal.
On 27 May 2022, the review applicant requested priory processing of his review application on the basis of compelling reasons. A psychological report dated 24 May 2022, prepared by his treating psychologist who has been seeing him since May 2017, was provided in support of his priority request. The report submitted that prolonged delays in the processing of his wife’s partner visa application of almost 10 years, was contributing to his serious and deteriorating psychological, emotional and mental health. On 30 May 2022, the Tribunal granted priority to the review application. The matter was constituted to the present Tribunal on 10 August 2022.
On 17 August 2022, the applicant was invited to provide updated information and evidence in support of his application. He was also invited on that date, to attend a hearing to give evidence and present arguments.
The Tribunal, subsequently in September 2022, received submissions and supporting documents from the review applicant’s representative.
The review applicant appeared before the Tribunal in person on 21 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and [the secondary visa applicants]. The review applicant was represented in relation to the review and the representative attended the hearing.
The issue in the present case is whether the visa applicant and review applicant are in a spouse relationship at time of application and continue to be in a spouse relationship at time of decision. The Tribunal also considered whether the secondary visa applicants are members of the family unit of the primary visa applicant at time of application and continue to be members of her family unit at time of decision.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
The visa applicant is a married woman, born in Quetta Pakistan in [Year 2]. She is currently [Age 1] years old. She declares in the application that she has a father and two daughters, born in [Year 6] and [Year 8], residing in Pakistan and a son, born in [Year 7], residing in Australia. She is educated to secondary school level, completed year 12. She has never been employed in a paid job. She is sponsored by her husband, the review applicant, who was born in [Year 1] and is now [Age 2] years old, and an Australian permanent resident. The review applicant has parents and a sister residing in Pakistan. The parties state that they met in March [Year 3] in Quetta, committed to a shared life together in August [Year 4] and married on [Date, Year 5]. They lived together until the review applicant fled Pakistan to seek protection in Australia in 2011. The visa applicants indicate they have been outside their country to [Country 1] for the purposes of pilgrimage in April [Year 9] and November [Year 10]. The visa applicant provides two addresses in Quetta Pakistan, one from birth until marriage, and the second from marriage in [Year 5] to the current time.
In addition to identification documentation, the visa applicant submitted with the application a marriage certificate, birth certificates for the children, a family certificate from the Pakistan Government, evidence of phone calls between the parties, two Form 888 Statutory Declarations dated 20 June 2013 by [Mr A] and [Mr B] who are long term family friends of both parties, and evidence of financial transfers. The visa applicant and sponsor each submitted a statement of the relationship, setting out when and how they met and the history of the relationship.
A further Form 888 Statutory Declaration by [Mr C] dated 30 May 2019, also a long term friend of the review applicant, was subsequently provided.
On 13 June 2019, the visa applicant’s then representative submitted further evidence, including two affidavits from Pakistani witnesses confirming the circumstances and status of the secondary witnesses, and photographs of the sponsor’s son’s recent visit to his mother and sisters in [Country 1]. An explanation was provided for the sponsor’s inability to travel due to work commitments; his parents in Pakistan had since passed away, and he is unable to travel to Pakistan because he has a protection visa.
On 19 June 2019 an interview was conducted with the sponsor and visa applicant by telephone with an officer of the Department. Notes of these interviews are included in the Department file.[1] During the interview the sponsor was asked about the inception of the relationship and marriage and the children. He was questioned about financial transfers he has made to Pakistan and travel since he has been here. The sponsor disclosed that he had only seen the visa applicant on one occasion in 2012 (sic) and did not accompany his son to [Country 1] in 2018 when he went to visit the visa applicants. The sponsor admitted he had travelled to [Country 2] with another woman, named [Ms D], whom he then admitted was his girlfriend. The relationship lasted about two years but he claimed it was now over. He said the visa applicants were aware of this woman and the nature of their relationship. In her interview, the visa applicant said she has not seen the sponsor since he left Pakistan to go to Australia and that she was not aware of any other person the review applicant was involved in a relationship with in Australia.
[1] [Reference], folios 386-393
Following the interview, in a letter dated, 20 June 2019, the Department sent an invitation to comment letter, alleging that information provided by the sponsor at his interview which was inconsistent with the visa applicant’s responses relating to her knowledge of his girlfriend in Australia and the last time she and the sponsor had met, may lead the Department to conclude that the visa applicant had provided false and misleading information and on this basis she may not satisfy PIC 4020 of the Migration Regulations.
A response to the invitation to comment letter was provided by the applicant’s representative on 22 June 2019, including a Statutory Declaration from the sponsor, explaining that the visa applicant is illiterate and was struggling to understand the interpreter at the interview and may have misunderstood the questions asked of her. The sponsor also provided more details about the relationship with [Ms D].
A subsequent letter was sent by the Department dated 5 August 2019 inviting comment on the information provided by the sponsor at the interview about his past relationship with [Ms D], which was explained as relevant because it may lead the delegate to conclude the relationship with the visa applicant is not exclusive as required by the legislation.
A response was provided on 24 August 2019 by the applicant’s then representative.
On 19 September 2019, the delegate refused the application, on the basis of not being satisfied the visa applicant and sponsor are in an exclusive and ongoing spouse relationship at time of decision, having regard to all of the evidence submitted and information before the Department.
Evidence before the Tribunal
In September 2022, the Tribunal received the following evidence and information in support of the application:
·Submission by applicant’s representative dated 9 September 2022.
·Statutory Declaration by the review applicant dated 9 September 2022. The declaration addresses the relationship with [Ms D] and how it ended, and financial, social, household and commitment aspects of his relationship with the visa applicant.
·Statement from [the visa applicant] dated 07 September 2022
·Statement from [the second visa applicant] dated 08 September 2022, indicating she is lives at home with the visa applicant, is single, completed her Bachelors degree 2-3 years ago and is not working due to the security situation.
·Secondary School Certificate for [the second visa applicant] issued [February] 2015, indicating completion of Secondary School Certificate Examination in March [Year 11]; [University] Marks Certificate for [the second visa applicant] relating to a [Bachelor] course, dated September 2019.
·Statement from [the third visa applicant] dated 08 September 2022, indicating she is lives at home with the visa applicant, is single, has not studied since finishing year [Number] about 3 years ago, and is not working due to the security situation.
·Documentation relating to a Provisional Apprehended Domestic Violence Order (ADVO) against [the review applicant] relating to a [Mr F], issued on 24 February 2016.
·Residential tenancy agreement indicating review applicant as sole tenant for property at [Address, Suburb 1], signed 21 July 2016.
·s257 Certificate issued by Transport for NSW on 19 August 2022 showing review applicant’s address history declared to Transport NSW.
·Records of phone/chat calls between [Ms D] and the review applicant in April - November 2020.
·Email correspondence to [Ms D] regarding a debt agreement signed 08 September 2020.
·Various court documents relating to [Mr G] (son of the review applicant) arising from an incident that occurred on 21 June 2021 including an Intensive Correction Order made on 5 August 2022; and a current AVO against [Mr G].
·Evidence of statement of money transfers made by review applicant to the visa applicant between 2017-2022.
·Form 888 signed and in support of the parties’ relationship by [Mr H], friend of the review applicant, dated 09 September 2022, who also attests to knowledge of the review applicant’s relationship with [Ms D] and its termination.
·Form 888 signed and in support of the parties relationship by [Mr I], childhood friend of the review applicant, dated 09 September 2022.
·Form 888 signed and in support of the visa applicant and the review applicant by [Mr J] dated on the 14 September 2022.
·WhatsApp chat recorded between the review and visa applicants from June 2021 to September 2022.
·AUSTRAC reports obtained under FOI from August 2012 to June 2022.
·Letter from [Organisation] in support of [the review applicant] as a valuable community member.
Tribunal hearing 21 September 2022
The Tribunal took oral evidence in person from the review applicant, and subsequently by telephone from the primary and secondary via applicants. A summary of the evidence follows. The applicant lives at his current address with his son. He has been at this address for around 2 years. Prior to this address, he has lived at various other addresses, always with his son. The address history was consistent with the document submitted to the Tribunal from Transport for NSW, other than the [Suburb 2] address, which he discussed later in the hearing.
He works as a self employed [owner/Occupation 1]. His income fluctuates depending on the customers. He earns anywhere between $2000-$5000 per week. He worked through the COVID lockdown period.
His family in Pakistan comprises his wife and two daughters. They live in the family home, which he owns. This is the same home he lived in before he came to Australia, since birth and where he has lived with his wife since they married. His parents were living there when he left Pakistan, but have since passed away. He has a brother, who passed away long ago, and a sister, who is widowed has a daughter and lives separately in Quetta. His sister has 3 sons, who are in Australia, in Melbourne. He does not support his sister, because her sons send money to her. None of the visa applicants work, they are fully financially supported by the review applicant. His older daughter was studying at university but she stopped about 2-3 years ago because of the security situation. He wanted her to study and was sending money for this purpose. His younger daughter also had to stop study for the same reason. The Tribunal asked whether the older one, who is now [Age 3] years old has been engaged or married. He said she has not, she is and has always been single. The younger one is also single. They are waiting to come to Australia. They just stay home and do chores around the house.
The Tribunal asked the applicant how he came to marry his wife. He said they met through a maternal cousin, [Mr K], who had a brotherly relationship with her. He introduced her to him and they married after that. The Tribunal asked why he gave a different story in his written statement lodged with the application where he referred to a persona called [Mr L] who introduced them. The applicant said his wife lived near [Mr L] who was also a friend of his cousin and they all met in this context. When put to him that he told the delegate at interview he met at the Imam Bargah he said that was the first time he saw her.
After marriage she came to live with him at his family home and has been in this same house since then. The review applicant said in Pakistan he was a [Sport] player and also worked at [a] company.
After coming to Australia the review applicant saw his wife in [Country 3] in 2013. He travelled there because he could not go to Pakistan and [City] was closest to Quetta. She came with her father and they stayed at an acquaintance of her father’s, for two months. The daughters did not travel there because it was too dangerous. He has not seen the visa applicant since then. He sent his son to [Country 1] to see them in 2018 but he did not travel with him. When asked why not, he said he did not have enough money to send them all there.
The Tribunal asked about [Ms D]. He said she had a [business] close to where the company he worked for was. She lived upstairs. He was a regular at that place. He started renting a room at her place because it was close to his work. In that context, they started seeing each other more often and it became a sexual relationship. He said he never saw it as more than that but she apparently did. He did not know her before that. He lived at this address for 6-7 months and then he moved. When asked why he moved, he said other people came to live there and they would drink and it was not good for him. He referred to the problem that occurred one day when they had a party. The Tribunal asked if this was a reference to the incident which was the subject of the ADVO document he provided. He confirmed it was. He moved to the [Suburb 1] address after that. The court proceedings ended with a conviction and bond against him in 2017. After that his contact with [Ms D] related only to money he owed her. When asked to explain this further, he said in 2016 she offered to give him an amount of around $17,000 or $18,000 to pay off the loan he had taken for a vehicle. She did that when he was living at her place in [Suburb 2], to help him out. When asked why she would do that he said she may have been trying to soften him up so that he would want to marry her.
The Tribunal asked about his travel to [Country 2]. He confirmed that he travelled with [Ms D] to [Country 2] in 2017. She paid for the trip. When asked why he went there with her he said she told him he was stressed and depressed and she had a funeral to attend there so she suggested he come with her for a change of scenery. He agreed they were close during this visit, and shared rooms. When he returned, he went back to his unit in [Suburb 1] and she was living in [Suburb 3].
The Tribunal asked if he continued to see her after that. He said he only went to her place once in [Suburb 3] because by then he realised that she wanted to marry him and that was not possible for him. The relationship came to a natural end after that. From then onwards their contact has only been about the money he owes her. He said the last time he saw her was when he had a citizenship test, she located him and came to him at [Suburb 4]. This was when she asked him to sign a document to confirm he still owed her money. When asked by the Tribunal how much of this debt he has repaid and how much he still owes, the applicant was vague and non specific. He said he does not remember how much is left. He pays her cash and sometimes sends money to her account. Later he said he used to keep records in his mobile phone but he lost that mobile.

The Tribunal asked if the visa applicant knew about [Ms D]. He said she and his daughters knew about her as the woman he was renting a room from. If he was on Viber with his family, and she was around she would say hello. He believes his wife may have been suspicious about the nature of their relationship but he didn’t tell her anything, until about 2-3 weeks ago. The Tribunal asked if this timing was because of the upcoming hearing. He agreed it was. The applicant said he did not want to break her heart. It is a cultural thing. He feels guilty now about all of this and that it was the reason the application was refused.
The Tribunal asked if apart from [Ms D], he has had relations with any other women in Australia or elsewhere. He said he has not. The Tribunal asked the applicant if the reason he did not accompany his son to [Country 1] in 2018 was because he was seeing [Ms D] at that time. He denied this and repeated it was because of financial constraints.
The Tribunal asked if during the period he lived in [Suburb 2] and went to [Country 2] with [Ms D], he was in contact with the visa applicants. He said he has always remained in regular, daily contact with them. He said he also continued to send money throughout this period.
Regarding financial arrangements the review applicant told the Tribunal he has consistently been sending around $1000 a month to the visa applicants since he came here, and sometimes more if needed. He referred to the AUSTRAC report submitted in support of this and other documents showing financial transfers. The Tribunal noted the AUSTRAC document showed numerous other people he was also sending money to in addition to the visa applicants. He agreed that he also sent some others money as charity and sent money on behalf of his friends. He indicated that the references to moneys he received was in relationship to winnings from the casino where he attended sometimes with friends. He stated the visa applicants have no other source of income apart from him.
The Tribunal asked about the living arrangements and household of the visa applicants. He said they live in a house he owns and where they all lived together before he came to Australia. Regarding their knowledge of his living arrangements he said they know he has always lived with his son. He tells them when he moves addresses, but not all of the details.
The review applicant told the Tribunal he is in daily phone contact with his wife and daughters and referred to the screenshots supporting the frequency of their communication. He said they talk about daily things, his income, their daughters and their well being.
The Tribunal asked the review applicant about his daughter’s marriage status. He confirmed that both are single. They are waiting to come to Australia and after that he will consider arranging marriages for them if they wish for it.
Evidence from primary visa applicant
The Tribunal took oral evidence by telephone from the visa applicant. An issue with the interpretation was identified by the interpreter and applicant, as she spoke with a Kandahar Hazaragi accent which slightly differed from that of the interpreter. The primary visa applicant confirmed they live in the review applicant’s family home, and that his parents passed away after he came to Australia. She referred initially to his sister having passed away before their marriage and then clarified this to say he had a sister but she was not close to her. The interpreter at this point interjected to explain difficulties he had interpreting her evidence which may have contributed to some confusion here.
The Tribunal asked the visa applicant about how she came to meet and marry the review applicant. She referred to being introduced by his cousin and they liked each other and agreed to marry. After marriage she moved to live with him at his family home, where she resides to date. All three of their children were born here. In Pakistan he worked as [an Occupation 2] and had problems so he had to leave.
Since he has come to Australia they have been in regular, daily contact. He came once to [Country 3] and they spent some months together. She travelled there with her father, but her daughters did not come because it was dangerous. She has not seen him since then. Around 3-4 years ago she saw her son in [Country 1]. The review applicant did not come at that time because he sent money for all of them and could not afford to come himself.
The visa applicant told the Tribunal he has been sending money since he has been in Australia. They rely fully on the money he sends. They have no other money from any other source. None of them work. He has sent money always. There has not been any period of time he has not sent money.
The Tribunal asked the visa applicant about [the second visa applicant]’s circumstances. She finished her bachelors degree but did not continue studying after that because of the security situation. There were bomb attacks targeting their community. She has an aptitude for study but only could not because of the security situation. Now she just stays home. She is not married or engaged. The visa applicant said she is unable to act on any proposals for her daughter because she is here alone.
The Tribunal asked the visa applicant if she knows if the review applicant has been with anyone else in Australia. She said he told her about this. He told her that this person promised to help him bring his family here. He told her 2-3 weeks ago but she also suspected it before. She knows this is not continuing now, it was finished a while ago because she wanted to marry him and he refused. The last time he saw her was when he went for his citizenship test, and she came up to him. When asked how this affected her relationship with the review applicant, she said it did not because she knows she is his wife. He has a nikah with her. She believes he made a mistake and he won’t do it again.
Evidence from secondary visa applicants
The Tribunal took oral evidence from each of the second and third named visa applicants. They both confirmed their living arrangements, relationship status, study history and current circumstances. They each told the Tribunal that the visa applicant and review applicant have been in continuous contact with each other since he left Pakistan. He sends money to them and has always done so. They wish to reunite with their father and brother in Australia, and especially their brother who is not well.
Following the hearing, on 22 September 2022 the representative provided copies of the review applicant’s income tax assessments for 2018-2021 inclusively, to demonstrate the increase in his taxable income after 2018, when he became an owner/[Occupation 1].
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. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen 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). 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 evidence before the Tribunal, including their oral evidence at hearing, indicates the parties married in [Year 5] in Quetta, Pakistan. A copy and translation of the marriage certificate is included in the Department file. While the Tribunal noted the name of the groom on the English translation did not exactly correspond to the review applicant, this was discussed with him at hearing and the Tribunal accepts it appears to be an error on the documentation. On the totality of the evidence before it, including the parties’ oral evidence at hearing, the Tribunal accepts they were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).
Are the other requirements for a spouse relationship met?
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) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.
The undisputed and uncontroversial circumstances of the present matter, which the Tribunal also accepts, are that the review applicant and visa applicant married in [Year 5] in Pakistan and lived together from marriage until the review applicant departed for Australia in 2011, a period of 20 years. There are three children of the relationship born in [Year 6], [Year 7] and [Year 8]. The first and third children are included in this visa application and the second child accompanied the review applicant to Australia, was granted permanent residency with him, and continues to live with him here. This application for a Partner visa was lodged in June 2013, after the review applicant’s grant of a permanent visa.
The application was refused in September 2019 on the basis that the delegate was not satisfied the visa applicant and sponsor had a mutual commitment to a shared life to the exclusion of all others. The reasons for decision indicate the delegate placed some weight on evidence that emerged during the processing of the application about the sponsor’s activities in Australia, including his relations with a woman in Australia. For reasons discussed further below, by the time of the Tribunal’s assessment, these circumstances have diminished in significance. The Tribunal’s consideration of the relevance circumstances of the relationship and conclusions follow.
Review applicant’s relationship with [Ms D]
Information was disclosed by the review applicant to the Department during the interview in 2019 of a relationship he had had with a woman in Australia. He was candid and upfront when asked about this matter before the Department, and maintained his candour regarding it in his evidence to the Tribunal. The applicant’s consistent evidence has been that he had a on and off physical relationship with [Ms D] in the period 2016 -2017 which ended some years ago now. He maintained that he did not live together with her as a de facto partner, although he acknowledges that he lived at the same address as her for a period of time in 2016. Before the Tribunal he provided documents relating to an AVO matter that referred to him being in a ‘domestic relationship with and living at the same address’ as [Ms D] in early 2016 and he acknowledged that they may have been considered in a relationship at that time on the basis of sharing an address. However, he maintains that he moved out from this address in 2017 and has provided evidence of a tenancy agreement and records from Transport NSW to support this. In 2017 they travelled to [Country 2] together, and he acknowledged that they shared a room and intimate relations and she paid for this trip. He claims that after returning from [Country 2] he saw her in this way only once again and the relationship since then is not ongoing. Given the review applicant’s history of candid and frank disclosure about this, and his more detailed evidence about the nature of their relationship provided at the hearing, the Tribunal is prepared to accept his account of the relationship.
On the basis of his evidence and the supporting documents provided, the Tribunal accepts the review applicant and [Ms D] had a physical relationship in the period 2016-2017, including a period in which they lived together. Whether the relationship could be characterised as ‘de facto’ within the specific meaning of that term for migration law purposes is now moot, as the Tribunal accepts his claim that it has since ended and he is no longer in any kind of relationship with [Ms D]. The Tribunal accepts there is no evidence before it to indicate that he is in any relationship with [Ms D] or anyone else at the present time. In the Tribunal’s view, the circumstances of his liaisons with [Ms D] in the past, are no longer relevant to the issue of the exclusivity of the commitment between the review applicant and sponsor at this point in time. The Tribunal is satisfied there is no evidence before it now to indicate the review applicant is in a relationship with another person which impacts the exclusivity of his relationship with the visa applicant.
Financial aspects of the relationship
The review applicant is, and has been since the application was made working as [an Occupation 1], and more recently as an owner/[Occupation 1]. Although his evidence to the Tribunal about his weekly/monthly income appears to be significantly higher than the evidence of taxable income disclosed in the tax returns submitted following the hearing, the Tribunal accepts he has been earning income from employment in Australia from which he has sent remittances to the visa applicants. The oral evidence of the applicants is that the visa applicants have no source of income from employment or anywhere else apart from remittances from the review applicant. The review applicant told the Tribunal he has consistently been sending around $1000 a month to the visa applicants since he came here, and sometimes more if needed. He referred to the AUSTRAC report submitted in support of this and other documents showing financial transfers. The Tribunal noted the AUSTRAC document showed numerous other people he was also sending money to in addition to the visa applicants. He agreed that he also sent some others money as charity and sent money on behalf of his friends. He indicated that the references to moneys he received was in relationship to winnings from the casino where he attended sometimes with friends. He stated the visa applicants have no other source of income apart from him.
In the circumstances that the visa and review applicants live in different countries, and the visa applicants have no other source of support, the Tribunal is satisfied the evidence of sustained history of regular and substantial financial transfers from the review applicant to the visa applicants from soon after his arrival in Australia to date strongly supports the existence of a genuine and continuing spousal relationship.
Nature of the household
The Tribunal accepts the visa and review applicant are living in different countries and have been living separately since the review applicant came to Australia in 2011. Prior to that time the Tribunal accepts that they lived together in the review applicant’s family home since their marriage in [Year 5], for a period of some 20 years. It accepts that they have three children together for whom they share joint parental responsibility. The Tribunal accepts that the visa applicant continues to live in the family home with their daughters. The review applicant and his son live together in various rental properties since they have been in Australia. The parties demonstrated knowledge of each other’s living arrangements and circumstances in their oral evidence at hearing.
In the circumstances of the present case, and particularly the fact the visa applicants continue to live in the family property since the review applicant departed, the Tribunal is satisfied the nature of the household at time of application and continuing at time of decision is consistent with a genuine and ongoing relationship.
Social aspects of the relationship
The review and visa applicant have been married since [Year 5], lived together for 20 years in Pakistan and applied for this Partner visa almost 10 years ago. They maintained in their oral evidence to the Tribunal that they are a married couple and continue to be in a married relationship with each other. Numerous Statutory Declarations from persons known to them for many years, in Pakistan as well as in Australia, have attested to their knowledge of the them as a genuine and ongoing couple. The review applicant travelled outside Australia in 2013, following grant of his permanent visa, to visit and spend time with the visa applicant in [Country 3]. He has not seen her since that time, although he sent his son to visit the visa applicants in [Country 1] in 2018. When questioned about the reasons why he did not accompany his son on that occasion, he said the reason was financial constraints. He said he could not afford to send his son and his wife and daughters and also travel himself and not work in that period. In support of this he provided the Tribunal evidence of his income tax returns for the periods 2018-2021 to show that his income was much less in 2018 and increased substantially after this year, which coincided with his evidence of becoming an owner/[Occupation 1].
The Tribunal notes that this, together with the adverse inference about the review applicant’s relationship with [Ms D], were significant concerns for the delegate. The Tribunal explored and considered the information and evidence about the relationship between the review applicant and [Ms D] in some depth during the hearing, and concluded, above, that the review applicant has no ongoing relationship with [Ms D], whether de facto or not, at this time. The Tribunal also accepts the review applicant’s explanation and evidence of his financial circumstances and draws no adverse inference from his failure to accompany his son on the 2018 visit to see the visa applicants in [Country 1]. It is not surprising to the Tribunal that the protracted history of processing of this application likely put pressure on the relationship, including financial pressure, and the Tribunal accepts the review applicant’s explanation in this context.
The Tribunal notes the review and visa applicant have continued to pursue this application notwithstanding that it has been going for almost 10 years. They provided evidence of regular and ongoing communication via chats and phone calls. On their oral evidence, they have plans for their future together in Australia including supporting the education and opportunities for their children and taking care of their son’s health and well being.
The Tribunal accepts, in the circumstances of this case, the evidence of social aspects of the relationship, is consistent with a genuine spousal relationship.
Nature of persons' commitment to each other
The parties have been married since [Year 5], lived together for 20 years in Pakistan and have pursued this Partner application for the past 10 years. They have three children together and continue to share responsibility for them. The Tribunal notes the evidence before it regarding the serious circumstances affecting their son, including his interactions with the criminal justice system and recent health diagnosis. The visa applicant was aware of this and expressed her desire to be able to come here to support her son, and the review applicant who has been struggling to do so on his own. The Tribunal finds this compelling evidence of their continued joint responsibilities for their son and support for each other.
The Tribunal finds the longevity of the relationship in particular and ongoing responsibilities they have for their children are strong factors in this case in support of the ongoing relationship, which has already proven itself to be long term.

On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.
Therefore the visa applicant meets cl.309.211 and cl.309.221.
Secondary visa applicants – members of the family unit at time of application and time of decision – cl 309.311 and cl. 309.321
On the evidence before it, the Tribunal accepts that the second named visa applicant was [Age 4] years old at the time of application and is now [Age 3] years old. The third named visa applicant was [Age 5] years old at time of application and is now [Age 6] years old. Evidence is before the Tribunal that the second named visa applicant completed her secondary school education in [Year 11] and was, up to 2019 studying for a Bachelor of [Subject]. The evidence of the third named applicant is that she ceased study prior to completing secondary school. Both applicants claimed that they ceased study due to the dangerous security situation in Quetta. The Tribunal observes that their claims are supported by country information of bomb attacks and concerns about security for members of the Hazara minority in Quetta in this period.[2]
[2] See for example, Pakistan Hazara minority protests after bombing in Quetta - BBC News; Fear and Loathing in Balochistan – The Diplomat
Clause 309.311 and cl. 309.321 require the secondary visa applicants be ‘members of the family unit’ of the visa applicant.
Member of the family unit is defined in r.1.12 to include dependent children. The Tribunal accepts the second and third named visa applicants are the children of the visa applicant. The issue is whether they are her ‘dependent children.’ Regulation 1.03 defines a ‘dependent child’ of a person as a child who has not turned 18 years or has turned 18 and is ‘dependent’ on that person. The term ‘dependent’ is defined in r.1.05A. It requires that at the relevant time, and for a substantial period immediately before that time, the person who is claiming to be dependent (the ‘first person’) must be wholly or substantially reliant on the other person for financial support to meet their basic needs for food, clothing and shelter. Further, the first person’s reliance on the other person must be greater than their reliance on any other person or source of financial support to meet those basic needs: r.1.05A(1)(a)(ii) and (ii). Alternatively, the first person must be wholly or substantially reliant on the other person for financial support because they are incapacitated for work to the total or partial loss of their bodily or mental functions: r.1.05A(1)(b). Relevantly, the terms of r.1.05A(1) do not carry with them any implication of necessity or lack of choice. The question is whether as a matter of fact, the first person is relying on the other person for support: Huynh v MIMA [2006] FCAFC 122 at [44].
At time of application, the Tribunal finds, on the evidence before it, the second named visa applicant, was [Age 4] years old, studying and living with the visa applicant on whom she was wholly reliant for financial support for food, clothing and shelter. There is no evidence that she had any other source of financial support. Therefore the Tribunal is satisfied that she was a member of the family unit of the visa applicant at time of application and met cl.309.311.
The third named visa applicant, at time of application, was [Age 5] years old and therefore was a dependent child of the visa application and a member of her family unit and met cl. 309.311.
At time of decision, the Tribunal accepts the second and third named visa applicants are [Age 3] and [Age 6] years old respectively. It accepts, on their oral evidence and written statements, that they are single, not engaged to be married and living with the visa applicant. At this time, the Tribunal is satisfied that they continue to be wholly reliant on the visa applicant for financial support for food, clothing and shelter, and neither have any other source of financial support. The Tribunal accepts the visa applicant receives financial support from the review applicant, which she uses for her and her childrens’ daily needs. It accepts there is no evidence to suggest that they have any other source of support.
On the basis of these findings the Tribunal is satisfied that the second and third named visa applicants continue to be members of the family unit of the visa applicant for the purposes of cl.309.321, noting that as at the time of the Tribunal’s decision, the visa applicant is not yet the holder of a Subclass 309 (Partner(Provisional) visa.
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
The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211 of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations; and
the second and third named visa applicants meet the following criteria:
·cl.309.311 of Schedule 2 to the Regulations; and
·continue to be members of the family unit of the visa applicant for the purposes of cl.309.321 of Schedule 2 to the Regulations.
Meena Sripathy
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 3955

27 September 2022

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