Ahmed (Migration)

[2024] AATA 2096

Ahmed (Migration) [2024] AATA 2096 (5 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Yumna Ahmed

VISA APPLICANT:  Mr Kunwar Faizan Ali

REPRESENTATIVE:  Mr Khurram Shahzad (MARN: 1572896)

CASE NUMBER:  1933449

DIBP REFERENCE(S):  BCC2017/2778937 BCC20172778937

MEMBER:Ann Duffield

DATE:5 April 2024

PLACE OF DECISION:  Canberra

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(2)(a) of Schedule 2 to the Regulations

·cl 309.221(1)(a) of Schedule 2 to the Regulations

Statement made on 05 April 2024 at 12:01pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner) Provisional) – genuine and continuing relationship – traditional marriage arranged by parents and registered in home country – delay in processing visa and long and difficult separation – limited financial, household and social aspects of relationship while living in different countries – nature of commitment – communication, travel and future plans – acceptance by family, friends and colleagues, except one brother and sister-in-law – detailed, deeply personal and compelling evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2)(a), 309.221(1)(a)

CASE
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 Home Affairs on 4 November 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 4 August 2017 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211(2) because they were not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act.

4. The review applicant appeared before the Tribunal on 2 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from a work colleague of the applicant.

5. The review applicant was represented in relation to the review.

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

   BACKGROUND

7. The applicant is a citizen of Pakistan born in February 1987. He has declared no previous relationships. He has a brother living in Australia.

8. The sponsor is a citizen of Australia born in Pakistan in September 1992. She has declared no previous relationships. A copy of her citizenship certificate is on the department’s file at Folio 112.

9. The parties entered into a traditional arranged marriage instigated by their respective parents. They first met when the sponsor travelled to Pakistan with her father and siblings in January 2017. The nikah ceremony was conducted on 22 January 2017. There is a marriage certificate registered in Pakistan on the Tribunal file confirming the marriage.

10. The parties lodged the application eight months later in August 2017.

11. The sponsor has travelled outside Australia between 13 January 2017 and 3 February 2017; 19 July 2019 to 28 July 2019; 23 December 2019 and 3 January 2020 and 14 November 2023 to 3 December 2023.

    Information before the Tribunal

12. The sponsor has provided the Tribunal with additional information including a recording of an ABC interview about the delays in the processing of her application; submission from her representative; evidence of the purchase of gifts; evidence of bank account in Pakistan; evidence of money transfers from the sponsor to the applicant between 2020 and 2023 totalling $2584 in addition to a transfer of AUD$2590 on 25 January 2017; a copy of the parties’ marriage registration certificate; detailed summaries of joint purchases and expenses, relationships with family members; social gatherings; their mutual commitment to each other and their future together

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Migration Act.

    Whether the parties are in a spouse or de facto relationship

14. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. 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            reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 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. 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).

    Tribunal hearing

17. The Tribunal found the review applicant’s testimony to be open, honest, detailed, and compelling and for the following reasons is satisfied that the couple have a mutual commitment to a shared life together as spouses.

    Are the other requirements for a spouse relationship met?

18. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

19. The couple have limited capacity to pool and utilise their joint resources as they live in separate countries. The review applicant told the Tribunal that they are both saving, and she currently has around $33,000 in the bank. She has also travelled to Pakistan to see the applicant on several occasions notwithstanding the closure of borders during Covid between 2020-2022.The applicant has opened a bank account in Pakistan in US dollars and the review applicant will occasionally send the applicant some funds. He is working at two jobs providing customer service support in IT for a US company, Aspire and for a Food chain in Pakistan during the day. He can work from home.  The review applicant works part time as a youth support officer and is also completing her studies for a Master of Social work. She lives with her parents and a sibling and makes small contributions to the running of the household.

20. The review applicant told the Tribunal that they don’t see the financial aspect of their lives of primary importance whilst the applicant’s visa status is so uncertain. Their focus has been on strengthening their relationship during a difficult period of long separation. The Tribunal found the review applicant’s evidence in this regard to be persuasive.

21. Considering the long separation between the couple and their lives in separate countries, the Tribunal is satisfied that they nevertheless have done what they can to support their relationship and look to the future.

22. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

23. The couple have not had the opportunity to establish a joint household as they live in separate countries and do not have any children. They do, however appear to have formed strong bonds with each other’s families. When the applicant has travelled to Pakistan, she has done so with members of her family including her parents and siblings. The review applicant has provided multiple examples of the families joining together socially and for celebrations, including the wedding.

24. Considering the separation of the couple and the fact that they live in separate countries, the Tribunal places little negative weight on this aspect of the couple’s relationship.

25. The Tribunal has considered the social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

26. As noted above, the couple and their respective families appear to have formed a strong emotional bond and have spent considerable time together. They are supportive of the couple’s marriage, even during the long separation they have endured. No-one appears to have insisted the couple break up, for example, and the review applicant told the Tribunal that she and the applicant have in fact grown stronger and more emotionally dependent upon each other over time. The review applicant informs her colleagues that she is married, and the couple present themselves as a married couple during the times they have spent together with family and friends in Pakistan. The review applicant has provided the Tribunal with strong evidence of their mutual outings either together or with others, including dozens of photographs and testimony from friends and family.

27. There is one exception to the support the couple have received from their respective families: the review applicant told the Tribunal that the applicant’s brother, who lives in Sydney, and his wife have not been supportive of their marriage. She said that her sister-in-law in particular was resentful and tried to break them up by telling the department of immigration lies about them. As a result, there has been a breakdown of the applicant’s relationship with his brother, and they are no longer in communication.

28. Considering the long separation between the couple and their lives in separate countries, the Tribunal is satisfied that they nevertheless present themselves as a married couple and are considered to be so by friends, family and colleagues.

29. The Tribunal has considered the nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

30. The Tribunal and the review applicant had a long and detailed intimate discussion about the nature of commitment and how the couple saw that commitment manifest in their relationship. For example, the Tribunal put to the applicant that if they were genuinely committed to each other, it seems inconsistent with the fact that they have not yet had the Braat and Valima ceremonies, which would signify the commencement of their married life and allow for the consummation of the marriage. 

31. The review applicant explained their respective views about the meaning of their marriage and how they saw it progressing, including most especially on an intimate level. She said that neither wanted that to be influenced by what the department or Tribunal wanted to see. They talked about what would happen if she became pregnant but remained separated for an indeterminate period until the visa matter was settled. They have held fast to their beliefs, despite the costs, and the Tribunal found the review applicant’s deeply personal explanation to be compelling.

32. The review applicant has travelled to Pakistan to be with the applicant on 5 separate occasions and the applicant has applied for, and been refused, a visitor visa to Australia on four separate occasions. The review applicant explained to the Tribunal that she could not stay in Pakistan for long periods of time because she was also looking after her father, who has been diagnosed with cancer (evidence provided) and her younger brother who is 23 years old and has been diagnosed with a crippling disease (evidence provided). She said that she was also working four days a week and studying for her degree. These responsibilities meant that she could not stay away from home for as long as she would like.

33. The review applicant gave a detailed account of their shared interests and daily conversations; they discuss buying or renting a home close to her parents in Churchill, rather than living in Melbourne which is an hour and a half away; they talked about options that may be available to them depending on what job the applicant was able to secure when he arrives in Australia; as well as ordinary daily events. It was evident to the Tribunal that the couple have in the past, and continue to in the present, plan and discuss their lives and their future as a committed couple, despite their enforced separation. In the Tribunal’s mind this in itself is a demonstration that the couple draw significant emotional support and companionship from each other and that they see their marriage as long term.

34. Having considered all the evidence individually and cumulatively, the Tribunal is satisfied that the couple have a mutual c commitment to a shared life together to the exclusion of all others and that they consider their relationship to be long-term. The Tribunal is satisfied that they do not live separately and apart on a permanent basis.

35. 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.

36. Therefore, the visa applicant meets cl 309.211(2)(a) and cl 309.221(1)(a)

    CONCLUSION

37. 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

38. 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(2)(a) of Schedule 2 to the Regulations

    ·cl 309.221(1)(a) of Schedule 2 to the Regulations

    Ann Duffield
    Senior 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).