2102175 (Migration)

2102175 (Migration) [2021] AATA 4461 (25 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2102175

MEMBER:Meena Sripathy
DATE:25 October 2021
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;
·cl.309.221 of Schedule 2 to the Regulations; and
·r.2.03A;

and the second to seventh named applicants, as members of the family unit of the primary visa applicant, meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:
· cl.309.311 of Schedule 2 to the Regulations; and
· continue to be members of her family unit now for the purposes of cl.309.321 of Schedule 2 to the Regulations.

Statement made on 25 October 2021 at 3:17pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine, continuing and exclusive relationship – members of the family unit – stepchildren of the sponsor – divorce of the sponsor’s first wife – de facto relationship – polygamous relationship – regular money transfers – divorce procedure in Afghanistan – compelling and compassionate circumstances – lengthy family separation – decision under review remitted
LEGISLATION
Marriage Act (Cth), s 88D
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A; Schedule 2, cls 309.211, 309.221, 309.311, 309.321
CASES
He v MIBP [2017] FCAFC 206
Paduano v MIMIA [2005] FCA 211
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 16 February 2021 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 primary visa applicant) applied for the visa on 7 July 2013 on the basis of her relationship with the sponsor, [named], the review applicant. The second to seventh named applicants are the step children of the visa applicant and children of the sponsor. 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was unable to be satisfied that the relationship between the sponsor and the primary visa applicant was exclusive, due to multiple inconsistencies in the evidence of the sponsor and primary visa applicant and absence of documentary evidence to confirm the end of the sponsor’s first marriage. Therefore the primary visa applicant does not meet the requirements of a de facto relationship as set out in s5CB(2)(a).
The review applicant appeared before the Tribunal on 14 October 2021 by video hearing to give evidence and present arguments. The Tribunal also received oral evidence from the first named visa applicant, [Wife A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages. The review applicant was represented in relation to the review by his registered migration agent.
The issue in the present case is whether the primary visa applicant meets the requirement of the definition of de facto relationship in s5CB(2)(a) that she and the review applicant have a mutual commitment to a shared life to the exclusion of all others.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Information in the application form indicates the following: The primary visa applicant was born in [year] in [Village 1], Afghanistan. She is an Afghan national and resides in Quetta, Pakistan. She indicates she has [specified siblings] residing in Pakistan, and her parents are deceased. She indicates she has 7 step children, [gender break up], born between [specified years], all of whom except one, [Daughter A], reside with her and are included in the application. She also indicates she has 5 other dependents, of which one brother in law and one [brother] are included in the application. [Daughter A] was subsequently added to the application in 2015.
The application is sponsored by the review applicant, born in [year] in [Village 1], Afghanistan. He is a permanent resident of Australia, having arrived in February 2012. He declares a mother and [siblings] in Pakistan (and one sibling who is missing) and the same 7 children and 5 dependent relatives, including the two relatives included in the application.
The primary applicant and sponsor state they married in Quetta Pakistan [in] April 2008, having met on 6 February 2008. They lived together until the sponsor left Pakistan to seek asylum. They declare the sponsor has a previous wife, [Wife B] and was married from 1991 and divorced [in] October 2012. They had 7 children of this relationship. A copy of a registration of Marriage Certificate at the Consulate General of the Islamic Republic of Afghanistan, Quetta dated [in] March 2013 relating to a marriage purportedly undertaken [in] June 2008 was provided with the application.
On 6 April 2018 a Form 1023 Notification of Incorrect Answers was submitted by the sponsor indicating correction of incorrect information provided in his visa application that his second wife, [Wife A], the primary visa applicant, died in childbirth. He indicates the correct information is that she is alive and living in Quetta and he is sponsoring her and his children for a Partner visa. By way of explanation, he states that he separated from his first wife and married his second wife in 2008. When he arrived in Australia he found out that being married to two wives was against the law and became afraid and so out of fear he said his second wife was deceased while he was in immigration detention in 2012. He formalised his separation from his first wife [Wife B] with a divorce [in] October 2012. He regrets providing incorrect information to Immigration and apologises for this.
Also provided to the Department is a Statutory Declaration from the sponsor dated 29 August 2018 stating the details of his relationship history and family composition. In this declaration he provides the following information:
·He is Hazara Afghan from [Village 1], [in a named district in] Uruzgan Province, born in [year]
·He married his first wife [Wife B] in 1991. They had seven children and also cared for a younger step brother, [Stepbrother A] and younger brother of the primary visa applicant, [Brother A].
·They fled Uruzgan in search of safety in Quetta Pakistan in 1998 during the reign of the Taliban in Afghanistan.
·His children were all born in Quetta Pakistan.
·He and [Wife B] separated in 2008 and divorced [in] October 2012.
·In 2008 he married his second wife [Wife A]. She is also Hazara Afghan and was born in [Village 1]. He has known her since they were young and he loved her very much. They were engaged [in] February 2008 and married [in] March 2008.
·They have no children.
·All of his children, except [Daughter A], lived with [Wife A] from March 2008. They have a close bond with her especially since 2011 when he left. [Daughter A] returned to live with her siblings in 2015.
·He left Pakistan to seek asylum in late 2011/early 2012 and arrived at Christmas Island in February 2012. He was granted a permanent protection visa on 28 November 2012.
·He sponsored the applicants for a Partner visa on 30 June 2013, but this was subject to lowest priority processing.
·His second eldest son, [Son A] and his step brother [Stepbrother A] travelled to Europe and he withdraws them from the application.
·The primary applicant’s brother [Brother A] is living and working in Iran and he withdraws him from the application.
·His daughter [Daughter A] is living with the primary visa applicant and her siblings now and her mother, [Wife B] wishes for her to join the application.
·He applied for Australia citizenship in late 2015 and is waiting for it to be finalised.
·He and his wife (the primary visa applicant) have been living apart for 6.5 years, and she and the children remain living in Quetta all these years. The children have suffered growing up without their father and the primary applicant has carried the heavy responsibility of raising the step children without his assistance.
·He has only been able to visit his family 4 times since he came to Australia. The last time was April to June 2018.
·The rest of the declaration contains information about the security situation in Ghazni Province, Kabul and Afghanistan generally and for Hazaras in Quetta, Pakistan.
Other supporting documents provided with the application include: Afghan ID documents for the applicants and translations; marriage certificate for primary applicant and sponsor issued by Consulate General of Afghanistan, Quetta [in] March 2013 relating to a marriage held [in] June 2008; photographs; letter dated 25 October 2017 from [a named doctor], relating to the sponsor’s mental health conditions exacerbated by his concerns for his family’s security and welfare in Pakistan; evidence of money transfers from March to October 2017.
On 25 July 2019 the applicant’s representative advised the Department of the intention to withdraw [Son A] from the application as he had travelled to Europe, and requested the sponsor’s daughter’s [Daughter A] to be added to the application, attaching her identification documents.
On 2 August 2019 the sponsor provided a further Statutory Declaration and a Form 1023, correcting errors in his earlier Statutory Declaration of 29 August 2019 (sic):
·At paragraph 5 of that Declaration he incorrectly gave the date of separation for himself and [Wife B]. The correct information is that they separated in 2012 and divorced later that year.
·[Wife B] and himself have three children born in the years immediately prior to his departure from Pakistan: [Child A] (DOB [specified]), [Daughter A] ([DOB 1]) and [Child B] (DOB [close to DOB 1])
·The order of their births is correct but the dates of birth are not accurate as it is clear that they are too close together. The reason for this is that when the primary visa applicant went to obtain Tazkiras for them she was informed that children under 6 were not allowed to have a photograph included and it would have to be added at a later date. To avoid a further dangerous journey to add a photograph she made [Child B’s] age a bit older so she could have a photo affixed.
Department file records indicate a telephone interview was conducted with the primary visa applicant on 11 December 2019. The following information is recorded in the notes:
·She states her age, that she is second wife of the sponsor, has no children with him but he has 7 children from first wife and they all live with her.
·She states that [Son A] left the home some 3 years previously, he went to Iran before but she does not know where he is now.
·She states [Brother A], her brother, is single. He went to the madrasa to study. He lives with her and has never travelled anywhere. [Stepbrother A] is not presently at home but lives with her. He learns English at [a named location] from 1.30- 8pm. He is the half brother of the sponsor. He has never travelled, or attempted to travel anywhere.
·[Daughter A] has been living with her for a long time. Before she lived with her mother and when the sponsor divorced her she came to live with the sponsor.
·She married the sponsor in June 2008 in Pakistan. She has [number] siblings, all but one is married, the unmarried one lives with her.
·She is [an Occupation 1] at [workplace] and works from 9-10am and 3.20-4.20. She [does specified duties]. She doesn’t earn money for this. Just does it to pass the time.
·When she married the sponsor he was married to his first wife and they all lived together, until he divorced her. She doesn’t remember exactly when they divorced. She recalls they all lived together for 4-5 months or maybe less.
·When asked if [Wife B] had children with the sponsor after she married him she said no. When asked when [Wife B’s] last child was born she said she does not know but it was [Child B]. She was a child when they married.
·She confirmed she was still in a relationship with the sponsor.
·She said she does not know where [Wife B] is but believes she is in Afghanistan.
·She could not recall how many times the sponsor has visited her, but believes it is every year. He works in [an industry] in Australia. He is supporting them financially.
·When asked why the children do not reside with [Wife B] she said that she decided the children should live with their father.
·The applicant was asked why previously (in 2018) she and the sponsor advised that [Son A], [Stepbrother A] and [Brother A] were to be withdrawn from the application, because the first two had travelled to Europe and the latter was in Iran. She initially denied this and then agreed it was correct. It was put to her that she gave inconsistent information about their whereabouts, saying [Brother A] and [Stepbrother A] were residing in her house. She said they are now. Notes indicated that she laughed when put to her that her information was inconsistent.
·Interview was terminated. Notes indicate interviewing officer was not satisfied that applicant was being serious when providing information. No further questions asked.
Following this interview, the interviewing officer made recommendations based on an assessment of the information provided. It was also noted that despite information included in sponsor’s Statutory Declaration of 29 August 2018 indicating an intention to withdraw [Brother A] , [Son A] Ali and [Stepbrother A], subsequently a withdrawal letter signed by sponsor was received on 5 August 2019 only withdrawing [Son A]. The agent was requested to provide signed withdrawal from the applicants but no response was received.
On 9 February 2021 the primary visa applicant and sponsor provided a signed statement withdrawing the secondary applicants [Son A], [Stepbrother A] and [Brother A].
On 16 February 2021 a decision was made to refuse the applications on the basis that the primary visa applicant did not meet cl.309.211 as the delegate was not satisfied the sponsor’s first marriage had ended and that the relationship between the primary applicant and sponsor was exclusive.
Evidence before the Tribunal
On 1 October 2021 the Tribunal received a submission and supporting documents from the review applicant’s new representative. The submission states that the applicant is remorseful and apologises for the incorrect information he provided to the Department in the past firstly that the primary visa applicant (his second wife) died in childbirth and about when he separated from and divorced his first wife, however it is submitted his circumstances as an illiterate man of minority Hazara background who has fled persecution in 1998 and lived in fear and insecurity in Pakistan should be considered. The incorrect information was given following a life threatening journey to seek asylum by boat. He was under psychological stress when he discovered that polygamy was illegal here and feared being deported. The review applicant now provides the evidence of the divorce he omitted to provide the Department. Regarding the primary visa applicant’s inconsistent responses at the Department interview it is submitted her circumstances as a vulnerable refugee woman supporting six step children in circumstances of insecurity and danger must be taken into account. The representative submits that given the explanations provided for the inconsistent/incorrect evidence provided in the past by the sponsor and primary visa applicant and new evidence of the divorce from his first wife, the Tribunal can find that the relationship is genuine, continuing and exclusive. Furthermore, the representative submits evidence of the sponsor’s pre existing chronic mental and psychological issues and post traumatic stress disorder secondary to a history of torture and trauma in his birth country, and that his situation is compounded by the prolonged separation from his wife and children.
Copies of his Statutory Declaration of 29 August 2018, Medical Certificate dated 6 March 2021 from his treating GP, [Doctor A] and a letter from Clinical Psychology registrar, [Psychologist A] dated 17 September 2021 together with a document titled “Divorce Certificate” dated [in] March 2013 issued by Ministry of Foreign Affairs Islamic Republic of Afghanistan, General Consulate of Afghanistan-Quetta (in English) are attached.
On 13 October 2021 the Tribunal received another submission from the representative and further supporting documents. The submission provided information of a discrepancy in the date of birth on the main applicant’s passport compared to the Tazkira document (day/month inversed). This was recently observed by the review applicant who believes it to have been an error on the past of the passport office. An incorrect year of birth was also observed for applicant, [Child B], which should have been [a later date]. Further supporting documents of evidence of money transfers from the review applicant to the applicants in previous years and a medical report relating to the review applicant’s health in 2014 is attached.
Hearing 14 October 2021
A summary of the evidence provided by the review applicant at hearing follows. His immediate family comprises his wife, the primary visa applicant, and six children who are included in the application as secondary visa applicants. He also has another son, [Son A] who was previously included in the application but was later withdrawn as he left for [Europe]. Apart from his immediate family the following other relatives also live in the same household. The wife and two children of his brother, [named] who is missing. Also two (step) siblings, [one named] and [Stepbrother A]. Initially he included some of these relatives in the application, but after it was taking so long to process he withdrew some of them.
The mother of his children is his first wife, [Wife B]. He does not know where she is at present, but assumes she is in Afghanistan with her father. He last saw her before he left Pakistan to seek asylum in late 2011. His last contact with her was by phone in 2012. He was on his journey to Australia and she was in Quetta. She was with the primary visa applicant and the children at that time. She was asking him then that she wanted to separate from him. The Tribunal asked why she was asking this. He said he does not know. They had a lot of arguments and when he left that was her excuse to separate from him.
The Tribunal asked about the history of his marriages. He married his first wife in 1991 in Afghanistan. He was pressured by his family to marry her because she was considered a strong woman and would be able to run a family. He was not happy to marry her. He was young and had no choice in the matter. She was older than him. Even his younger brother was pressuring him to follow the advice of his father and marry her. After marriage they did not have intimate relations for some years because he was not very interested in her. After some [number] years they had their first child and then three more children.

The Tribunal asked how he came to marry his second wife. She was from the same neighbourhood as his family in Afghanistan and he knew her from there. They were also together in Pakistan. He tried hard to get her because he always loved her. [Wife B] was not opposed to the marriage because she was looking for some reason to divorce him. She wanted to divorce him for some time but could not because of the children. He remained married to both women because in his country he was permitted to do that. After the second marriage he had three more children with his first wife. He explained that he had obligations to both wives and fulfilled these. When asked why he had no children with his second wife, he said that is not up to him, that is up to God. The Tribunal put to him that his account of his first wife not being interested in the marriage does not appear to be consistent with the fact that three more children were born of this relationship after his second marriage and after a significant gap from the last child. He explained that the first four children were born close together and after that they started using contraception to have a break. After his second marriage only the first wife got pregnant, but because of the number of children and their young age, he told his second wife they should wait to have more children. The first wife wanted to separate from him when she was carrying the last child but he told her she had to have the child first. The last three children were born close together in age and the youngest was just over one year when he left Pakistan.
The Tribunal asked the applicant what family he declared when he came to Australia. He said he declared about 14 people in that first application. When he first arrived he told authorities he had two wives, but while he was in the detention centre people told him he cannot say that because it is not permitted in this country and his application may not succeed. So he decided then to only include his first wife as she is the mother of his children. On the advice of other people in the detention centre he wrote down that his second wife passed away to explain the earlier information he had given. All of this was around the same time that his first wife was seeking to separate from him. When she told him that she did not want to come to Australia and wanted to separate he had to change the whole story again. The Tribunal asked the review applicant when he had this conversation with his first wife regarding separation. He said they discussed it in 2011 before he left.
The Tribunal queried then if that is the case, why would he put her down as his wife and declare his second wife as deceased. He said initially he did not want to separate from his first wife because he did not want the children separated from their mother and he thought if he sponsored her to come with the children she could be with the children. When she insisted she did not want to come and wanted the separation he had his relatives discuss it with her. Eventually he told his cousin, [named], if she really wants to divorce then she can go ahead with it. The Tribunal asked about the process undertaken to obtain the divorce. He said there is no formality regarding divorce. He informed his cousin that he agreed to the divorce and on that basis it was granted. This was in 2012.
The Tribunal noted that he has provided a document entitled Divorce Certificate dated [in March] 2013 referring to a divorce [in] September 2012 and asked why he only provided this to the Tribunal recently and not to the Department earlier. He said he had the certificate earlier and gave it to his migration agents. He thought they had provided it to the Department. The Tribunal noted that this document does not appear to be included in the Department file. The applicant indicated to the Tribunal that his first agent, [named] gave him a bundle of documents submitted to the Department which included this one. The applicant’s current representative, present at the hearing, confirmed this. The Tribunal put to the applicant it raises this because there is independent information before it that obtaining false documentation in Pakistan is not difficult, and particularly among Afghans in Pakistan fraudulent documentation is prevalent and this together with the late submission may lead it to give this document little weight. In response the applicant stated that he definitely provided this document earlier to his previous agents. If they did not submit it to the Department he cannot be held responsible for that. He invited the Tribunal to contact these agents. The Tribunal indicated it would not do that, but if he wishes to submit further evidence he can do so.
The Tribunal explained the issue in this matter is whether it can be satisfied that his relationship with his first wife has ended and his relationship with the primary visa applicant is genuine and exclusive at the date of the application and continuing to this time (time of decision). The Department conducted an interview with the primary visa applicant in December 2019 and she provided various responses that were inconsistent with information provided to the Department. These inconsistencies may lead the Tribunal to have concerns about whether they are telling the truth about their circumstances. It will put this evidence to him now and invite his comments or response. The Tribunal indicated that he can respond immediately or request further time. The Tribunal proceeded to put particulars of the information that the primary applicant gave regarding the presence of [Stepbrother A] and [Brother A] in her household at that time, which was inconsistent with information provided to the Department that they had left Pakistan and were withdrawn from the application. The applicant responded that this response may be explained by timing. When he informed his agent to withdraw these applicants from the application it was because he had heard that they had left but he didn’t know then where they had gone or how. Later he came to know that they were unable to get out of the country and returned back to the home and this is why the primary visa applicant said they were there. So in fact the answer she gave may have been correct at that time. The Tribunal noted the Department file includes a signed statement from him and the primary visa applicant withdrawing them from the application on 9 February 2021. He agreed they did this because they decided it was taking so long.
Regarding the information about applicant [Daughter A] having lived with her for a long time since the divorce and her answers that they all lived together only 4-5 months after her marriage and no further children were born to the first wife the review applicant explained the following. He said it was correct that [Daughter A] had lived with her for a long time by 2019, she initially went with her mother after the divorce but returned to the primary visa applicant and her siblings later. Regarding the period they all lived together, he believes this was a misunderstanding or misinterpretation, and she meant 4-5 years. Regarding her response about no further children, he asked her about this and she told him she misunderstood the question. She thought she was asked if she and he had children and answered no.
The Tribunal asked why his first wife took [Daughter A] only at the time of the divorce. He said she was her favourite and she asked to take one of the children. After returning to the village she realised life was very hard for the child and so after some years she thought the child was better off with her siblings and returned her. This was around 2015. At that time they were in [Village 1], the village in Afghanistan where his first wife was from. He does not know if she stayed there after that. The review applicant stated that none of the children have contact with their mother.
Evidence from primary visa applicant by telephone
The primary visa applicant provided evidence about her age, where she was living and with whom. She named each of the 14 people in her current household, including 6 step children named as applicants, and the other relatives referred to by the review applicant. She confirmed that all of the children are children of the review applicant’s first wife, [Wife B]. [Wife B] left the household in 2012 when she obtained her divorce and the primary visa applicant does not know here whereabouts but believes she is in Afghanistan. When asked why she left in 2012 the witness said she does not know the answer to that question. She referred the Tribunal to the review applicant because she does not know what went on between them. The Tribunal asked how relations were between them when she married and they all lived together. She said she and [Wife B] had a good relationship between the two of them. They were in the same household but had different rooms. Their relationship stayed good until the end, as far as the witness understood [Wife B] did not want to come to Australia. The review applicant told her that. He told her that initially he wanted to bring her but she did not want to come. When she left she took one of the children with her, [Daughter A], with whom she was closest. The witness stated that since she left she has not had any contact with the children or her.
The primary visa applicant confirmed no one in her household is working. She and the children are solely reliant on the money sent by the review applicant from Australia.
The Tribunal asked her about the circumstances of her marriage to the review applicant. She confirmed that she comes from the same neighbourhood as him in Afghanistan and also lived in the same area in Pakistan and they knew each other for a long time. She liked him since then and so when he proposed marriage she agreed. The Tribunal asked what she know about his first marriage. She said she only knew he was married and had 4 children. He did not tell her anything about the how that relationship was.
The Tribunal asked if, when he told her that he was proposing to sponsor his first wife to come to Australia, he discussed what would happen to her. She said he only told her that [Wife B] did not want to come after [Wife B] had left the house. He did not discuss it with her before that.
The Tribunal put to the witness the evidence that she gave to the officer who interviewed her in December 2019 which appeared to be inconsistent with other information before the Department including that she and the review applicant had provided and invited her comment. She said it was correct that [Stepbrother A] and [Brother A] were in her household at the time of that call. It is also true that previously they had tried to leave the country but were not successful so they were still there. Regarding the information about [Daughter A] she said the telephone line was not clear and she could not hear everything clearly. She understood the question to be has she lived with you for long and she said she had. Regarding her response about how long they all lived together, she said she believes she said 4 and a half years not months. She again apologised if her responses were not clear, the line was not great and she may have been confused. She clarified that her response to the question about if there were children after her marriage, was in response to children of hers and the review applicant, the response to which was no. She didn’t understand it to be asking about how many children of the first wife.
The Tribunal asked the witness if she and the review applicant had planned to have children together. She said of course she wants that experience of being a mother but because at that time there were so many young children they decided not to have more.
The Tribunal put to the witness that the main issue in this application is whether she and the review applicant are genuinely in an exclusive relationship or whether he is also still in a relationship with his first wife. It explained the inconsistencies in her evidence to the Department together with the fact that the sponsor and his first wife had more children after the second marriage and relative young age of the children may lead the Tribunal to not be satisfied the first wife left as claimed and invited her response. She said that the first wife officially divorced him and left in 2012. They are no longer together. She has been caring for all of the children for so many years now and it has been very difficult. The first wife’s parents are in Afghanistan. She cannot even send the children to school in Pakistan because of their status there. They are living with so many people in one house. The rents are so high also now that there are so many Afghans coming to Pakistan. It is so difficult for her and for the children. She pleaded with the Tribunal to help them. It is not fair for the children, they do not have their mother with them and they cannot see their father.
The Tribunal invited the review applicant to comment on the witness’ evidence. He had no comment. The Tribunal asked if he wishes to say anything further on the issue of the truthfulness of the claim to be separated form his first wife. He said he swears it is true.
The Tribunal put to him that given the recent events in Afghanistan, and security issues even prior to that, as he has referred to himself in his Statutory Declaration in 2018, it may have concerns about the plausibility of the claim that his first wife voluntarily left her children and returned to Afghanistan and ask if he had any comment on that. He said she made her own decision to do that and he cannot explain it.
The representative was invited to make any further submissions. He said that he agrees that it is difficult to understand why the first wife was not interested in being sponsored for the visa and if she had it would likely have been successful. Regarding the divorce, he confirms that the documents provided to him by the review applicant from his previous representative indicates that it was provided to the Department in 2014 so he is not sure why they say it was not provided.
Following the hearing the Tribunal obtained a copy of the review applicant’s Protection visa file. These documents indicate that at his Bio Data interview [in] February 2012 (the day after his arrival by boat to Christmas Island) he referred to having two wives. No reference is made to the second wife being deceased. He names the first wife as his emergency contact.[1] In his entry interviews on 4 May and 3 June 2012 he referred to his two wives, and stated that the second wife (the primary visa applicant) died in childbirth following the birth of their child [Child B], and names seven children.[2] In the attachment to his Part B & C of Form 866 he declares his seven children and two wives, and that the second wife died in childbirth.[3]
FINDINGS AND CONSIDERSATION
[1] [File number], Folios 5-9
[2] [File number], Folios 9-20
[3] [File number], Folios 33-34
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 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: s.5F(2)(a).
Are the parties validly married?
The primary visa applicant and sponsor (review applicant) claim to be married in Quetta in 2008 and provided a marriage certificate issued by the Afghan Consulate in Quetta in March 2013 to support this. However, on their own evidence, the review applicant was already at that time married to his first wife at the time of that marriage and that relationship was ongoing. For the purposes of migration law, only the first marriage in a polygamous situation may be recognised as valid in Australia given the operation of s 88D(2)(a) of the Marriage Act.
Therefore, on the evidence, the Tribunal finds 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).
Are the parties in a de facto relationship?
As the visa applicant and review applicant are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a married relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).
In forming an opinion whether they are in a de facto relationship, consideration must be given 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.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
The Tribunal observes that the delegate accepted that the primary visa applicant met the requirements of the relationship being genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and that the couple are not related by family: s5CB (2)(b), (c) and (d), and refused it solely on the basis of not being satisfied that the relationship was exclusive as required by sub paragraph (2)(a) of s5CB.
The Tribunal accepts on the evidence that the primary visa applicant and review applicant married in 2008. It accepts that she was the second wife of the review applicant at the time of marriage and that they all lived together in the same household, with the review applicant’s children up until the time the review applicant departed Pakistan to make his journey that eventually brought him to Australia. The review applicant sponsored the primary visa applicant for this application on 30 June 2013. Since that time he has travelled overseas four times to visit the visa applicants. Evidence has been submitted of regular and consistent money transfers sent by him to the primary visa applicant to support the family since he has been in Australia, and photos of himself with the applicants, including the primary visa applicant. The applicant declared the primary visa applicant as his second wife upon his arrival in Australia, although at some stage he declared her as deceased which he subsequently corrected and explained (see further below). In his evidence before the Tribunal, more than eight years since the application was made, the review applicant maintains the primary visa applicant is his partner and continues to support the application.
Therefore, on the available evidence before it, and having regard to the matters referred to in r.1.09A(3), the Tribunal is satisfied the relationship between the primary visa applicant and the review applicant is genuine and continuing and that they are not living separately and apart on a permanent basis and they are not related and therefore the requirements of s5CB(b), (c) and (d) are met.
Is the relationship between the parties exclusive of all others ?
This is the issue in dispute in this review. Critically, the Tribunal must be satisfied that the review applicant was not, at time of application, and is not at this time, still in an ongoing marriage or de facto relationship with his first wife. For the following reasons the Tribunal has reached a different conclusion to that of the delegate on this issue.

On the evidence before the Department and Tribunal the parties have acknowledged that there were concurrent relationships between the review applicant and his first and second wives between 2008 and 2012. Their evidence is that after this, from [September] 2012, the first wife divorced him and they have been permanently separated from this time. In support of this claim a Divorce Certificate issued by the Afghan Consulate in Quetta in March 2013 was provided to the Tribunal.
The Tribunal has considered this document, the timing of its production and evidence provided by the review applicant about the circumstances of the separation and divorce from his first wife. Contrary to the review applicant’s claim, the divorce certificate document does not appear on the Department file [number]. The Tribunal notes the review applicant’s evidence that he provided it to his agents and cannot be responsible for their failure to submit it to the Department. At the video hearing he showed the Tribunal the copy of the papers he was given by his previous agent that were purported to have been submitted to the Department, which included this document. A letter from his previous agent on file dated 7 July 2013 indicates there were some difficulties experienced by the agent lodging the application by fax prior to 1 July 2013, and the Tribunal is prepared to accept that it is possible some documents were not included in those circumstances. It is also apparent that there was a change of representative for the applicants during the application process.[4] These circumstances may support the applicant’s claim that he provided the document to his agents to lodge with the Department earlier.
[4] [File number] Form 956
Regardless of this, the Tribunal is not inclined to place much weight on this document, of itself, as evidence that the relationship between the review applicant and his first wife ended. This is because there is significant independent information about the prevalence of fraudulent documents from Pakistan, especially among Afghan nationals,[5] and also the Tribunal notes that the review applicant was physically in Australia at the time indicated in the document that the divorce occurred and his oral evidence about how the divorce was obtained made no reference to this document.
[5] See e.g. United Nations Office on Drugs and Crime 2009, Crime Facilitating Migration from Pakistan and Afghanistan, December, p. 19 , Department of Foreign Affairs and Trade 2015, DFAT Country Information Report: Afghanistan, 18 September, p. 25.
Nevertheless, on the basis of all of the evidence now before it, the Tribunal accepts that by the time this application was made, the review applicant had ended his marriage relationship with his first wife. In reaching this conclusion, it gives weight to and accepts, the review applicant’s account of the circumstances of the divorce that he gave at the hearing. He told the Tribunal there is little formality involved in obtaining a divorce in his culture, and the divorce occurred when he agreed to it, which he did and passed this on through his cousin in 2012. The Tribunal accepts the applicant’s evidence about this is consistent with independent information about divorce procedure in Afghanistan considered by the Tribunal.[6] He explained to the Tribunal that up until this time, he was in a marriage relationship with his first wife (as well as his second wife) and it was his intention and desire to bring her, as the mother of his children, to Australia. He told the Tribunal he made that decision when he realised upon arrival here that having two wives was not permitted in Australia, and upon learning of this, he (incorrectly) declared to the Department that his second wife died in childbirth. He said it was only when [Wife B] refused this that he agreed to her request for a divorce, and it was after this that he decided to sponsor his second wife for a partner visa to come to Australia. The Tribunal observes that this account is consistent with Department file records that show in his first interview upon arrival, [in] February 2012, he declared both wives. In the next interview in May and June 2012 and in his protection visa application, he indicated his second wife as deceased. This was subsequently corrected by the review applicant on lodging the present application in June 2013.
[6] Rastin-Tehrani, K. & Yassari, H. 2012, Max Planck Manual on Family Law in Afghanistan, amended 2^nd edition, Max Planck Institute for Comparative and International Private Law, July, p. 76 < <Attachment>.
Although initially the Tribunal had some doubts and concerns about the plausibility of the claim that the first wife would refuse the opportunity to come to Australia with her children, and that she demanded a divorce from the review applicant, the Tribunal accepts this is the review applicant’s explanation for why he sponsored his second wife over his first wife, who was the mother of all of his children. It also acknowledges that his explanation is supported by the departmental file records of his past declarations regarding the family. Unlike the delegate, the Tribunal had the benefit of a hearing with the review applicant via video conference, where it was able to question him at some length and depth about these matters. While on one hand the explanation that [Wife B] wanted the divorce and did not want to come to Australia with her children seemed implausible, on the other hand, the review applicant’s evidence about this was provided to the Tribunal spontaneously and without hesitation, and it was clear to the Tribunal from the emotion and distress he demonstrated at the hearing that the prolonged separation from his family is causing genuine pain and hardship to the review applicant and visa applicants and if it were not true it is not clear why he would not have sponsored [Wife B] in the first instance. The Tribunal also acknowledges there is no evidence before it to contradict the explanation that has been given or to support a finding that the first marriage did not end and is continuing.
The present application was lodged on 30 June 2013, and in the eight years since then, the review applicant has pursued and maintained his support of the present application, sponsoring the primary visa applicant as his sole de facto partner. Given this substantial passage of time, his explanation for why he sponsored his second rather than his first wife for the partner visa, and the absence of any credible evidence to contradict the claim that he divorced his first wife as claimed in 2012, the Tribunal finds that it has no reason to not be satisfied that the relationship between him and his first wife ended and he and the primary visa applicant have been in a mutually exclusive relationship since the time this visa application was made and continuing to this date. For these reasons the Tribunal is satisfied that the primary visa applicant and review applicant have a mutual commitment to a shared life to the exclusion of all others.
On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time the visa application was made and at the time of this decision.
Therefore, the visa applicant meets cl.309.211 and cl.309.221.
Are the additional criteria for a de facto relationship met?
Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.
The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: r.2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.
In the present case, there is no evidence that the relationship is registered under a relevant State or Territory law; and the relationship between the primary visa applicant and the review applicant, though existent and declared before his permanent humanitarian visa was granted, was not exclusive then and therefore was not a de facto relationship within the meaning of that term, so they must meet the 12 month requirement. On the basis of the review applicant’s evidence, the Tribunal accepts he was in a marriage relationship with his first wife (and a concurrent de facto relationship with the primary visa applicant) until he and [Wife B] divorced in or around September 2012. As this application was made at the end of June 2013, accordingly, the Tribunal is not satisfied that the primary visa applicant had been in the de facto relationship (in that it did not meet the requirement of being an exclusive relationship) for at least the 12 month period ending immediately before the date of the application.
Therefore, the Tribunal must be satisfied the visa applicant can establish compelling and compassionate circumstances for the grant of the visa: r.2.03A(3). The expression ‘compelling and compassionate circumstances for the grant of the visa’ is not defined in the legislation. Having regard to the ordinary meaning of the words, ‘compassionate’ suggests ‘circumstances that invoke sympathy or pity’. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’ and, therefore, convincing: see Paduano v MIMIA [2005] FCA 211. The Tribunal has considered the passage of time since the application was made, now a period over eight years, and the emotional, psychological and financial stress and hardship the separation has caused the review and visa applicants. In this regard the Tribunal has had regard to, and placed weight upon, the psychological report of [Psychologist A], Clinical Psychology Registrar dated 17 September 2021 and letter from his treating GP, [Doctor A] dated 6 March 2021. It also accepts that the review and primary visa applicants have been in a relationship since 2008, albeit not exclusive initially, but still long term. Accordingly, the Tribunal is satisfied that there are compelling and compassionate circumstances for the grant of the visa.
For these reasons the Tribunal is satisfied that the visa applicant meets the additional criteria prescribed in r.2.03A.
Secondary applicants
With regard to the secondary applicants, the Tribunal finds on the evidence before it, including documentary evidence and oral testimony and consistent information of family composition provided by the review applicant to the Department in his previous application, that the second, third, fourth, fifth, sixth and seventh named applicants are the biological children of the sponsor (review applicant) and step children of the primary visa applicant and therefore are members of the family unit of the primary visa applicant, and meet cl.309.311 and continue to be members of her family unit for the purposes of cl.309.321.
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
·r.2.03A;
and the second to seventh named applicants as members of the family unit of the primary visa applicant, meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:
· cl.309.311 of Schedule 2 to the Regulations; and
· continue to be members of her family unit for the purposes of cl.309.321 of Schedule 2 to the Regulations.
Meena Sripathy
Member

ATTACHMENT - Extract from Migration Regulations 1994
1.09ADe facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).

[2021] AATA 4461

25 October 2021

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