Ahmed (Migration)

[2017] AATA 2130

Ahmed (Migration) [2017] AATA 2130 (30 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mussa Ibrahim Ahmed

VISA APPLICANT:  Mrs Asha Ahmed Mohamoud

CASE NUMBER:  1516667

DIBP REFERENCE(S):  BCC2015/1880619

MEMBER:Mary Urquhart

DATE:30 October 2017

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

·cl.309.221 of Schedule 2 to the Regulations

·r.2.03A

Statement made on 30 October 2017 at 4:22pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) – Subclass 309 (Spouse(Provisional))  – Invalid official documents issued by Somalia government – Financial support by review applicant – Degree of companionship and emotional support

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 12, 65,
Migration Regulations 1994, r 1.09A(3), r 1.15A(3), r 2.03A, cl 309.211, cl 309.221
Legislative Instruments Act 2003, Part 1 Schedule 5 PIC 4021(a)(iii)

CASES
Paduano v MIMIA [2005] FCA 211

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 25 November 2015 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 30 June 2015 on the basis of her relationship with her 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). Relevantly to this matter the primary criteria include cl.309.211.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied the applicant and sponsor were in a genuine relationship with each other.

4. The review applicant appeared before the Tribunal on 30 October 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Asha Ahmed Mohamoud, the visa applicant and Mr Daud Ali Duhur.

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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

7. 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.

8. '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.

9. 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 husband and wife 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 as to 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.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.. The marriage was an arranged marriage . The Tribunal accepts that this is an acceptable norm in the culture and religion of the parties. The review applicant provided a copy of a marriage certificate indicating that the parties were married by proxy in Somalia on 24 March 2014

11. The Tribunal has carefully considered the validity of the marriage. The Tribunal has had regard to PIC 4021(a)(iii) Part 1 Schedule 5-14/073 (Legislative Instruments Act 2003) which indicates that official documents issued by the Somalia Government are deemed to be invalid by the Australian Government. The reason for this is that Somalia has not had a central functioning government for several years with Authority to issue official Government documents. The Tribunal therefore does not accept the Proxy marriage certificate as a valid document for Australian Migration purposes.

    Are the parties in a de facto relationship?

12. 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 spouse 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).

13. 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.

    Financial aspects

14. The review applicant and sponsor gave consistent evidence of financial support by the review applicant who regularly transfers money to the applicant. This evidence is supported by fund transfer records from two companies, Mustaqbal Express to Somalia and Dahabshiil to Malaysia. A telephone witness, Mr Duhur gave evidence of carrying some $300 in cash from the review applicant to the visa applicant in Malaysia for the purchase of a mobile telephone.

    Nature of the Household

15. The parties have provided limited evidence, which the Tribunal  accepts,  that they have lived together in Somalia and Malaysia and have travelled together to Cambodia. Movement records of the review applicant support the review applicant’s evidence of trips to visit the visa applicant including at the time their daughter was born in April 2016. Though the parties currently  live in separate countries the Tribunal  is satisfied that the parties live together or do not live separately and apart on a permanent basis.

    The social aspects of the relationship

16. The Tribunal finds little evidence of social recognition by family, friends or the wider community for the  claimed relationship with the applicant.

17. The Tribunal records it has serious concerns with the evidence of social recognition provided  in the two sworn Statutory Declarations (Form 888’s) provided by deponents Mr Abdullahi Ali  Osman  sworn 2015 and Mr Ibrahim Saed. Mr Osman claims at the time he deposed to have known the visa applicant for 7 months; Mr Saed claims to have known her for 2.5 years. The review applicant sought to explain this as an anomaly and said that the deponents knew his wife “through him.” The Tribunal does not accept the explanation and gives no weight to the Form 888 documents.

18. The Tribunal  notes Mr Ali Duhur, the telephone witness, gave evidence of having met the review applicant’s wife in Malaysia. The Tribunal gives some limited weight to this as social recognition and has considered the photographic evidence of the parties together and with others as indicative of recognition of the relationship. Because of this evidence the Tribunal  is satisfied there is some limited social recognition.

    Nature of the persons’ commitment

19. The parties in this application married by proxy and did not meet in person for some considerable months afterwards. The applicant gave evidence that they had agreed to this circumstance and that the review applicant’s work commitments are said to have contributed to the delay in meeting up. The parties claim now to share a degree of companionship that is consistent with them being in a genuine spouse relationship. The Tribunal accepts there has been constant contact between the parties since October 2015. The Tribunal notes it is the first marriage for both parties. Prima facie the Tribunal accepts the applicant and sponsor now have a daughter together, born 23 April 2016. The Tribunal  accepts there is a degree of companionship and emotional support drawn by each party from the other and that they see their relationship as long-term.

20. 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 the time of this decision.

21. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

    Are the additional criteria for a de facto relationship met?

22. 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.

23. 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.

24. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement.

25. On the basis of the evidence the Tribunal is not satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.

26. Therefore, the Tribunal has considered whether the visa applicant has established 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.

27. On 23 April 2016 the visa applicant gave birth to a daughter in Malaysia. A birth certificate has been provided for the child. The child holds Australian citizenship by decent granted 12 September 2016.

28. The delegate was not satisfied that the parties were in a spouse relationship. The delegate had concerns that there was not a genuine relationship between the parties. The delegate expressed a view that though the visa applicant was pregnant a visa could not be granted in anticipation of the birth of a child who would be an Australian citizen. The Tribunal, however, has had the benefit of evidence regarding the birth of the child; the Tribunal has taken evidence from the applicant and the sponsor and has closely reviewed the additional documentary evidence presented by the parties. Whilst the Tribunal appreciates the reservations of the delegate the Tribunal has been given a great more information documents and has had the benefit of asking about a relationship that is almost two years older. The baby is now 18 months old.

29. Accordingly, the Tribunal is satisfied that there are compelling and compassionate circumstances for the grant of the visa.

30. For these reasons the Tribunal is satisfied that the visa applicant meets the additional criteria prescribed in r.2.03A.

31. 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

32. 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

    ·cl.309.221 of Schedule 2 to the Regulations

    ·r.2.03A

    Mary Urquhart
    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).