Ahmadi (Migration)

[2020] AATA 1936

Ahmadi (Migration) [2020] AATA 1936 (12 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Arash Ahmadi

VISA APPLICANT:  Mrs Asal Azimi

CASE NUMBER:  1804212

DIBP REFERENCE(S):  BCC2017/4969658

MEMBER:David Crawshay

DATE:12 March 2020

PLACE OF DECISION:  Melbourne

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

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

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 12 March 2020 at 4:27pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and ongoing relationship – weddings in Australia and Iran – multiple mutual visits including in third countries – pooling of financial resources – evidence of constant communication – social recognition of the relationship – decision under review remitted          

LEGISLATION

Marriage Act 1961
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206

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 4 February 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 is Mrs Asal Azimi, 39, who is a citizen of Iran.

3. The visa applicant applied for the visa on 27 December 2017 on the basis of her relationship with her sponsor, Mr Arash Ahmadi, 41, who is the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the visa applicant did not meet the definition of spouse under s.5F of the Act. Specifically, the delegate found that there was insufficient evidence to demonstrate that the visa applicant was the spouse of the review applicant.

5. The review applicant was represented in relation to the review by his registered migration agent.

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

   BACKGROUND

7. The parties claim to be second cousins, and to have seen each other throughout their early years until the sponsor migrated to Dubai from Iran in around 2000. The sponsor eventually came to Australia in 2003 with his then-wife on a Higher Education Sector visa (TU-573). The sponsor was eventually granted a Skilled – Independent visa (VB-885) in 2009. He obtained Australian citizenship in 2011.

8. In 2011, the parties claim to have seen each other at a party in Tehran while they were still married to their respective ex-spouses. They claim that this was the first time they had seen each other since the sponsor left Iran, although they claim to have communicated via Facebook and other social media since around 2009.

9. In June 2014, the applicant divorced her then-husband. She has claimed no children from this relationship. In May 2017, the parties claim that the sponsor visited the applicant in Tehran while the sponsor was going through the process of divorcing his then-wife. The parties claim that, once the sponsor’s divorce was finalised in July 2017, the sponsor flew to Tehran to propose to the applicant. The applicant then travelled with the sponsor to Australia on a Visitor visa (FA-600), the claimed purpose of which was to see if the applicant wanted to live here.

10. The applicant returned to Iran in mid-August 2017, but came back out to Australia in November 2017. On 11 December 2017, the parties held a wedding ceremony and celebration at a restaurant in Hawthorn, where they claim that family and close friends of the sponsor were in attendance. The parties departed around a week later on the same flight to Tehran to conduct another small wedding ceremony in January 2018.

11. On 27 December 2017, the visa application was lodged in Tehran.

12. The parties then claim to have visited each other multiple times in Australia and Iran, as well as certain third countries such as Thailand, Portugal, the UAE and Turkey for holidays.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the visa applicant is the spouse of the review applicant under s.5F of the Act.

    Whether the parties are in a spouse or de facto relationship

14. 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.

15. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal was provided with a copy of a certificate for a marriage that took place on 11 December 2017. The certificate states that the marriage was solemnised in accordance with the Marriage Act 1961. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spouse relationship met?

17. The Tribunal notes the paucity of evidence submitted by the parties to the Department at first instance. However, it also notes that, since the decision of the delegate in February 2018, substantial further evidence has been submitted to the Tribunal by the parties, including:

    ·Detailed statutory declarations from the parties;

    ·Statutory declarations from third parties, including friends of the parties;

    ·Photographs of the parties by themselves and with friends and family members;

    ·Extensive records of communications between the parties;

    ·Itineraries and other documents related to travel; and

    ·Detailed submissions from the review applicant’s representative.

18. The Tribunal considers that this additional evidence goes directly to addressing the four matters for consideration under subreg.1.15A(3) – namely, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of the parties’ commitment to each other. This evidence will be provided to the Department upon remittal of this decision.

19. As regards the financial aspects of the relationship, the Tribunal has considered evidence submitted by the parties. It accepts that they have joint accounts in Iran and Australia which are regularly used for joint and individual purposes. It accepts that the visa applicant is a secondary card holder for the review applicant’s credit card account. It accepts that the parties do not have joint ownership of real estate or other major assets, but that the visa applicant has put a considerable sum of money towards fees associated with the purchase of their current residence as well as the purchase of furniture. It accepts that the review applicant has nominated the visa applicant as beneficiary of his superannuation account and international health insurance. The Tribunal accepts that the parties paid for their joint expenses through joint accounts when in Iran and Australia. It accepts that the lion’s share of paying for expenses has fallen on the shoulders of the review applicant, the visa applicant having quit her job two years ago. The Tribunal is satisfied that the financial aspects of the relationship point towards the parties being in a genuine and continuing relationship.

20. Turning to the nature of the parties’ household, the parties both submitted that they visit each other regularly in each other’s home country, living at each other’s residences in Melbourne and Tehran. The review applicant claims to have travelled eight times to Iran to visit the visa applicant since the commencement of their relationship, and the visa applicant claims to have travelled six times to Australia during that period. The Tribunal has seen evidence in the form of movement records and itineraries that substantiate the parties’ claims in this regard. It has also had regard to photographs of the parties at what appears to be the review applicant’s house in Melbourne, as well as on various holidays. The Tribunal accepts that the parties have made a considerable effort to spend as much time with each other as they could during the period from May 2017 until today, including for extended periods of up to three months at-a-time. It is satisfied that the parties do not live separately and apart on a permanent basis.

21. In relation to the social aspects of the relationship, the Tribunal has had regard to the considerable evidence submitted, including photographs and declarations from people who claim to know the parties. It has had particular regard to evidence of the parties’ wedding in December 2017, which was attended by some of the sponsor’s friends and family, as well as a small celebration the parties had in Tehran involving family from both sides in January 2018. It has also had regard to photographs of the parties with their friends in social situations. It has considered the contents of their social media accounts, which represent them as being married to each other. Having considered this evidence, the Tribunal is comfortably satisfied that the parties have represented themselves to their family and friends as being married to each other. Further, the Tribunal is also satisfied that friends, family members and other acquaintances of the parties regard them as being in a married relationship based on a number of declarations from these people. The Tribunal finds that the social aspects of the relationship firmly point to the parties being in a genuine and continuing relationship. Photographs and other evidence such as flight itineraries and hotel receipts demonstrate that the parties undertake regular holidays to different parts of the world. Photographs also depict the parties in the presence of friends in social situations, such as dinner parties. The Tribunal considers that this evidence confirms that the parties plan and undertake a variety of joint social activities.

22. The Tribunal turns lastly to the nature of the parties’ commitment to each other. The Tribunal accepts that the parties are known to each other as second cousins. It accepts that they have seen each other since childhood. It accepts, based on photographic evidence, that they met each other again in 2011 at a party they both attended in Iran with their then-partners. It accepts that they met again in May 2017, after the applicant had divorced her ex-husband and when the sponsor was separated from his then-wife, and that the sponsor proposed marriage to the applicant in July 2017. It accepts that they began a relationship at or around that time. Based on this, the Tribunal accepts that the parties were in a relationship for at least five months at the time when the visa application was lodged and for around two-and-a-half years at the time of this decision.

23. During this time, the parties have lived with each other in Iran and Australia. Taken together, these periods comprise a significant amount of time. When they have not been together, the evidence shows that they have been in constant communication with one other via Facebook, WhatsApp, texting, and voice and video calls. The Tribunal accepts this evidence.

24. The parties gave evidence that they have been actively trying to conceive and, in the process, the applicant has experienced a couple of complicated pregnancies during 2018. The parties state that the sponsor travelled to Iran on a number of occasions during 2018 to help the applicant during this challenging time, taking unpaid leave and claiming to suffer professional detriment as a result of these leave periods. The parties claim that they wish to continue their quest to have a child together, but it is now on hold. The applicant stated that she would not be able to cope emotionally, psychologically or physically if she had to go through another complicated pregnancy in Iran and away from the sponsor. The Tribunal accepts this evidence.

25. The totality of the evidence weighs heavily towards a finding that the parties draw companionship and emotional support from each other and from their relationship. Taken with evidence of the duration of the parties’ relationship, and the length of time the parties have lived together, the Tribunal is satisfied that the parties have a commitment to a shared life as a married couple to the exclusion of all others.

    CONCLUSION

26. 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 at the time of this decision. The parties’ relationship is genuine and continuing, they have a commitment to a shared life as a married couple to the exclusion of all others, and they do not live separately and apart on a permanent basis.

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

28. 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

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

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

    ·cl.309.221 of Schedule 2 to the Regulations.

    David Crawshay
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).