Abrahimzadah (Migration)

[2020] AATA 5979

Abrahimzadah (Migration) [2020] AATA 5979 (29 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Masoud Abrahimzadah

VISA APPLICANT:  Ms Thi Le Son

CASE NUMBER:  1834142

DIBP REFERENCE(S):  BCC2017/3434986

MEMBER:Steven Griffiths

DATE:29 October 2020

PLACE OF DECISION:  Adelaide

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

·1.20J(2) of Part 1 to the Regulations

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 29 October 2020 at 4:21pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 –Australian citizen child– compassionate or compelling circumstances – sponsorship limitations – birth of their son- applicants are currently in a genuine spousal relationship– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, rr 1.09, 1.20J, Schedule 2, cls 309.211, 309.221

CASES
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206.
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC 32

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 October 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Ms. Thi Le Son, applied for the visa on 20 September 2017 on the basis of her relationship with her sponsor, the review applicant, Mr. Masoud Abrahimzadah. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy 1.20J(1)(a) of Part 1 of the Regulations in that the sponsor is affected by the sponsorship limitation, as he had sponsored two previous partners, and did not satisfy compelling reasons.

4. The parties were assisted by their registered migration agent, Ms. Linda Cheng, of Aust Link Migration and Business Services.  

5. The parties were invited to a hearing set for 10.00am on the 20 October 2020, which did not proceed as the parties were not available as the migration agent had incorrectly believed the was to commence at 2.00pm.

6. The sponsor appeared before the Tribunal on 29 October 2020 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the visa applicant, the mother of the sponsor and a long-term friend of the sponsor. The hearing was conducted with the assistance of interpreters in the Vietnamese, Farsi and English languages.  

7. The registered migration agent took part in the hearing.

8. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams Video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams Video, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams Video. No concerns were raised by the parties on holding a Microsoft Teams Video hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs, the Tribunal file, the information provided by the applicant prior the hearing and the oral evidence from the Tribunal hearing.

    ISSUE

11. The issue in the present case is whether Compelling Reasons exist for consideration of the visa application and if the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

    BACKGROUND OF THE EVIDENCE

12. Ms. Son was born in Tra Vinh, Vietnam, in 1990. Her parents, born 1962 & 1967, and her 2 brothers, born 1993 & 1993, all live in Vietnam. She married the sponsor on 4/5/16 and has a son, born on 11/10/17.

13. Mr. Abrahimzadah was born in Afghanistan in 1958. His father is deceased, with his mother, born 1930, and he has 3 brothers and 2 sisters, born 1955 to 1978, living in Australia other than the youngest brother who lives in Germany. He arrived in Australia on 26/1/88 on a Humanitarian Visa. He has married twice previously, both times with partners he sponsored to Australia, one from China and the other from Iran, with no children resulting. He has a son, born 17/11/07, from a de facto partner between the first and second marriages. He married the visa applicant on 4/5/16 and has a son, born 11/10/17. 

    INFORMATION TO THE TRIBUNAL

14. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Migration Agent submission, 13/10/20

    Sponsor Statutory Declaration, 12/10/20

    Sponsor travel records for trips to Vietnam

    Sponsor Last Will and Testament, 22/9/20

    Records of 53 Money Transfers by Sponsor to Applicant, from 2018 to 2020

    Sponsor and applicant Chat conversations, 127 pages from 2018 to 2020

    10 photos of the sponsor in Vietnam with his family.

    Sponsor reference letters (no reference to Applicant and child) and Form 888 Statements previously provided. 

    Submission by Australia resident son of Sponsor in support of visa application, undated

    Submission by sponsor ex-de facto partner in support of visa application, undated

    9 Money Transfers from Sponsor to Applicant, January to October 2020, total $ 11,050

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

15. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian Permanent Resident or an eligible New Zealand citizen. The Tribunal accepts the documented evidence of the sponsor being an Australian Citizen by grant.      

    Does the application meet Compelling Reasons for consideration?

16. Records and the visa application of the parties indicate that the sponsor has sponsored to Australia two previous parties, the first he was married to from 1988 to 1991 and the second from 2000, with a separation after a few years and eventual divorce in 2012.

17. Regulation 1.20J(1)(a) limits the number of sponsorships a person is able to provide, with (2) stating the Minister may approve the sponsorship of an applicant for a visa is the Minister is satisfied that they are compelling circumstances affecting the sponsor.

18. The Tribunal accepts the documented and oral evidence of the parties having been in a relationship from mid-2012.

19. The Tribunal accepts the documented, photographic and oral evidence of the parties that they have a son, born 11/10/17, who is an Australian citizen and has an Australian passport, and is unable to live with his mother in Australia as she does not have visa or residential rights.

20. The Tribunal accepts the oral evidence of the parties that their 3 year-old son misses his father, is upset when their daily contact finishes and wants to be with both of his parents all the time.

21. The Tribunal accepts the documented and oral evidence of the parties and the witness that the 90 year-old mother of the sponsor has never met her daughter-in-law and grandson, is unable to travel to Vietnam to meet them and is desperate for them to be in Australia so she can meet them.

22. The Tribunal accepts the documented and oral evidence of the parties that the sponsor has travelled to Vietnam to be with the applicant, and since October 2017 his son, 13 times since the relationship developed, amounting to approximately 399 days.

23. The Tribunal accepts the oral evidence of the parties, and witnesses, of the previous two marriages of the sponsor failing due to two women deciding that they wished to leave, the first to go to Sydney to live and the second that she wishes to return to her home country, with the sponsor doing all he could to keep the marriages in place and was devastated when each women decided to leave.

24. The Tribunal notes the sponsor has a 13 year-old son from a de facto relationship that was in place for 23 months, with the son spending most weekends with the sponsor and has been in contact with the visa applicant and 3 year-old son in Vietnam.

25. The Tribunal accepts the documented evidence of a letter of support on the visa application from the 13 year-old son and his mother.

26. The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

27. The applicant presented documented evidence of her relationship with the sponsor, with the relationship commencing in early 2012, meeting physically in July 2012, committing to each other in November 2012, marrying in May 2016 and having a child together in October 2017. The Tribunal acknowledges the applicant’s claims and has considered the various documents they have provided in support of the claim that the relationship is a genuine one. However, the Tribunal makes no assessment as to the nature of the applicant’s relationship at this stage with the sponsor and has accepted at face value the claims made by the parties that they were and continue to be in a genuine relationship together and the circumstances of that relationship for the purposes of this decision.

28. The criteria in cl.309.211(2) is that the applicant is the spouse or de facto partner of the sponsoring partner. This, in part, requires the applicant and the sponsor to be in a genuine, continuing and exclusive relationship. If the sponsor has exceeded the limit of sponsorship arrangements, 1.20J(2) provides for compelling circumstances to be considered. Accordingly, simply the fact that the parties are in a genuine and continuing relationship is not of itself a compelling reason for not applying the sponsorship limitation If the relationship itself can be considered a compelling reason for not applying the Schedule 3 criteria, it must be the particular aspects of the relationship which must provide a compelling reason for not applying 1.20J(1)(a) and not simply the fact that the parties are in a relationship.

29. The Tribunal is mindful that the Explanatory Statement to Migration Regulations (Amendment) 1996 No. 75, in providing examples of compelling reasons, states:

    Where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer... In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived (Tribunal’s emphasis).

30. The explanatory statement and any guidelines produced by the Department do not provide criteria which, if met, satisfy the requirements of the legislation. If the nature of the relationship between the applicant and the sponsor were to be a compelling reason, all the factors of the relationship, including its duration, the level of financial and emotional commitment, the dependence the parties had upon each other and other relevant factors must be considered. As it is made clear in the Explanatory Statement, the examples provided only may justify the waiver of the Schedule 3 criteria. They do not provide a criterion that, if satisfied, becomes a compelling reason for not applying the Schedule 3 criteria and the Explanatory Statement is not part of the statutory text which is to be considered.

31. The Tribunal accepts that it is reasonable to expect a level of emotional hardship and significant risk to the physical health of the sponsor to be experienced if the applicant is separated from the sponsor for any extended period of time. The Tribunal acknowledges that this is a common experience for other people who apply to migrate to Australia from offshore on the basis of their relationship with an Australian citizen or permanent resident. The Tribunal accepts that emotional hardship can be considered a compelling reason and the Tribunal determines that the evidence presented by the applicant and the sponsor is sufficient to substantiate the impact of emotional hardship.

32. On evidence the Tribunal is satisfied there are compelling reasons as their requirement to live in different nations, particularly since the birth of their son in October 2017, has impacted on them emotional significantly.

33. The Tribunal is satisfied that there are compelling reasons for the sponsor to be permitted to support the visa application of the applicant, as permitted by 1.20J(2).

    Are the parties in a spouse or de facto relationship?

34. ‘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).

35. 'De facto partner' is defined in 5CB of the Act, which provides that 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).

36. In forming an opinion whether they are in a spouse or 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 parties’ 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.

    Are the parties validly married?

37. The Tribunal notes that at the time the visa application was made the sponsor provided evidence of being married to the applicant in Vietnam on 4 May 2016.

38. The Tribunal has regard to the documented and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (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 expense

39. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision no real estate or other major assets was or is jointly owned by the parties.

40. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, the parties do not have any joint liabilities.

41. The Tribunal determines from the oral evidence of the parties that at the time of the visa application and this decision, none of the parties has a legal obligation to the other.

42. The Tribunal accepts the documented and oral evidence of the parties that the sponsor works for the Education Department in South Australia.

43. The Tribunal accepts the oral evidence of the parties that the applicant, prior to the birth of their son, worked at her family’s farm in Vietnam.   

44. The Tribunal notes the oral evidence that the parties that they do not operate a joint bank account.

45. The Tribunal accepts the documented and oral evidence of the parties that the sponsor provides financial support to the applicant and their son every month, totally approximately $60,000 since the first contribution, with the funds used to support the applicant and pay for the clothing, food, medicine and health needs of their son and determines and determines, at the time of the visa application and this decision, to represent the pooling of financial resources for major financial commitments and the sharing of day-to-day household expenses.  

46. The Tribunal accepts the oral evidence of the parties that for the 13 trips the sponsor has made to Vietnam since the relationship commenced, that the has provided the funds used by the parties during the trips, including two occasions when the parties travelled to Cambodia for a holiday and determines this to represent, at the time of the visa application and this decision, the sharing of day-to-day household expenses and major financial commitments.

47. The Tribunal accepts that the parties live in different countries and do not have a joint household to fund and puts little weight on this.

    Nature of the household aspects that must be considered include:-

    (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

48. The Tribunal accepts the documented, photographic and oral evidence of the parties that they have a son, born 11/10/17 who lives in Vietnam with his mother.

49. The Tribunal accepts that from the time of the birth of his son, the sponsor has travelled to Vietnam 4 times, for approximately 118 days, to be with his wife and son.

50. The Tribunal accepts that the parties are in contact multiple times per day, with much of their conversations involving or being about their son, and determines, at the time of this decision, that the parties have joint responsibility for the care and support of children.

51. The Tribunal accepts the documented, photographic and oral evidence of the parties of the applicant living in Vietnam, and that over the period of the relationship the sponsor has been to Vietnam 13 times, spending all of the approximate 399 days with the applicant, her family and now their son, with the parties living together at all times and determines, at the time of the visa application and this decision, the parties have shared the responsibility for housework at these times.  

52. The Tribunal recognises that the parties live in different countries and puts little weight on this

    Social aspects of the relationship that must be considered include:-

    (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

1. The Tribunal accepts the documented, photographic and oral evidence of the parties that their engagement function was a significant event, with their wedding being a smaller function and determines, at the time of application and this decision, the parties represent themselves to other people as married.  

2. The Tribunal notes the oral evidence of the parties and witnesses of the family of the sponsor not being in a position to travel to Vietnam for the wedding, while accepting the strong oral evidence of the support for the relationship and marriage from the 90 year-old mother of the sponsor.  

3. The Tribunal accepts the documented and oral evidence of family and friends of the parties, and determines, at the time of the visa application and this decision, the families and friends of the sponsor and applicant are supportive of the relationship and marriage.  

4. The Tribunal accepts the documented, photographic and oral evidence of the parties on planning and undertaking joint social activities in India and determines these activities to have represented, at the time of application and this decision, that the parties plan and undertake joint social activities.

   Nature of the commitment to each other that must be considered include:-

   (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.

5. The Tribunal accepts the documented and oral evidence from the parties of initially being introduced, while living in different countries, by the aunt of the applicant, in early-2012, meeting in Vietnam on 6/7/12, committing to each other on 30/11/12 and marrying on 4/5/16.

6. The Tribunal accepts the documented, photographic and oral evidence of the parties having lived together, in Vietnam, for approximately 399 days since July 2012.

7. The Tribunal accepts the documented, oral evidence of the parties and oral evidence of the support witnesses at the hearing, of contact between the parties happening multiple times every day.

8. The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, a high level of companionship and emotional support is provided by each of the parties to the other.

9. The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, the parties have an ongoing commitment to each other and see the relationship and marriage as being for the long-term.

10. The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.

11. The Tribunal accepts that the parties originally met via the aunt of the applicant in early 2012, with them being in a relationship from mid-2012, committing to each other on 30/11/12, marrying in Vietnam on 4 May 2016, their son being born on 11 October 2017, with the sponsor and applicant living together for approximately 399 over this period and the parties do not live separately and apart on a permanent basis. 

12. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and the time of this decision.

13. Therefore the visa applicant meets cl.309.211 and cl.309.221.

14. 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

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

    ·1.20J(2) of Part 1 to the Regulations

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Steven Griffiths
    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).