Akbari (Migration)

Akbari (Migration) [2018] AATA 5226 (7 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Besmellah Akbari
VISA APPLICANT:  Mrs Adela Bunyadi
CASE NUMBER:  1713441
DIBP REFERENCE(S):  BCC2016/1545563
MEMBER:Christine Kannis
DATE:7 November 2018
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 07 November 2018 at 2:57pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional) – definition of de facto partner – not married and not met in person at time of application – subsequent marriage – introduced through parents – contact through telephone calls – review applicant’s health condition restricts overseas travel – limited time together before and after marriage – minimal evidence of social recognition – limited evidence of mutual commitment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65
Migration Regulations 1994, Schedule 2 cls 309.211, 309.221, 309.224, rr 1.09A(3), 1.15A(3), 2.03A
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 6 April 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 25 April 2016 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). 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. Relevantly to this matter the primary criteria include cl.309.211.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211. The delegate noted that the visa applicant and the review applicant were not married at the time of application and therefore considered whether the visa applicant satisfied the definition of de facto partner in relation to the review applicant. The delegate noted that the parties had not met in person at the time of application and decided they did not meet the additional criteria in r.2.03A and there were no compelling and compassionate circumstances for the grant of the visa.
A copy of the Decision Record was submitted to the Tribunal by the review applicant for the purposes of the review.
The review applicant appeared before the Tribunal on 15 October 2018 to give evidence and present arguments. The Tribunal received oral evidence by telephone from the visa applicant. The Tribunal also received evidence from the review applicant’s mother, Hakimah Akbari and the review applicant’s sister, Zainab Akbari. The Tribunal was assisted by an interpreter in the Dari and English languages.
The Tribunal records that the interpreter expressed confusion and difficulty obtaining answers from the review applicant with respect to questions asked by the Tribunal. The interpreter confirmed with the review applicant that he understood the questions asked of him by the Tribunal.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 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 review applicant is an Australian citizen.
The visa applicant and the review applicant were not married at the time of application. They married on 18 May 2017.
The issues are whether the review applicant and the visa applicant were in a de facto within the meaning of s. 5CB of the Act at the time of application and, whether at the time of decision, the relationship meets the definition of “spouse” in section 5F of the Act.
Whether the parties were in a de facto relationship at the time of application
It is undisputed that parties were not married at the time of application.
Section 5CB of the Act 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). In forming an opinion as to whether parties 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 parties’ household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision.
On 26 April 2016 the review applicant advised the Department that he and the visa applicant had not met in person. The review applicant suffers from a heart condition which restricted his capacity to travel overseas.
The Tribunal considered the r.1.09A(3) factors.
Financial aspects of the relationship
The review applicant told the Tribunal that he and the visa applicant have no joint financial assets or liabilities. They do not have a joint bank account. The review applicant said he has not provided the visa applicant with any financial support before or after the marriage because he is in receipt of Centrelink income support payments. He said his father has provided some financial assistance to the visa applicant after the marriage.
The Tribunal accepts that the parties reside in different countries and that they have not established any joint financial arrangements.
Nature of the household
The Tribunal has taken into account the evidence as to the nature of the household including the parties’ living arrangements and any sharing of housework.
The Tribunal is not satisfied the couple have established a joint household at any time. The review applicant’s evidence to the Tribunal was that they lived together in the visa applicant’s father’s house for a month after they married and before he returned to Australia. They have not spent any time together otherwise. The Tribunal is not satisfied they have shared household responsibilities or domestic chores.
The Tribunal accepts that the parties live in separate countries and have not had the opportunity to establish a combined household. The Tribunal placed no weight on the nature of the household an indicator of a genuine and continuing de facto relationship at the time of application.
Social aspects of the relationship
The Tribunal has considered the evidence provided as to whether the persons represent themselves to other people as being in a de facto relationship, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.
At the time of application the parties had not met in person and had not the opportunity to undertake joint social activities.
Statutory declarations made by the review applicant’s brother-in-law, Liyaqat Ali Shokat Ali on 31 March 2016 and by the review applicant’s general practitioner, Dr Fred Faigenbaum on 12 September 2015 were provided. Mr Shokat Ali said he was aware that the parties had been corresponding for 21 months “prior to their relationship with love and sincere to each others”. Mr Shokat Ali had not spent time with the parties as a couple and the Tribunal gave this evidence minimal weight. Dr Faigenbaum said he did not know the visa applicant and that he believed the review applicant to be honest and “genuine in his fiancé who he says has known since childhood”. Dr Faigenbaum had not spent time with the parties as a couple and did not know the visa applicant and the Tribunal gave this evidence no weight.
The Tribunal informed the review applicant that the statutory declarations provided were made by declarants who had not met the visa applicant and had not spent time with the parties as a couple and that consequently they would be given minimal weight. He said Mr Shokat Ali has spoken to the visa applicant on the phone.
The review applicant told the Tribunal that his mother, the visa applicant’s parents and sister and many other important people attended the marriage ceremony. Five photos which appeared to have been taken on the parties’ wedding day were provided.
Mrs Hakimah Akbari said she attended the marriage ceremony. She said the parties spent a total of two and half months together taking into account the time spent together planning the ceremony and after the ceremony. The Tribunal noted that this was 12 months after the time of application.
Mrs Hakimah Akbari said the review applicant and the visa applicant were very good together and they went out together whenever they were invited. She said she will be happy when the visa applicant is in Australia because she can take the review applicant to his medical appointments.
Ms Zainab Akbari told the Tribunal she has met the visa applicant however that was in 2013 which was prior to the time the parties contend their relationship commenced. She said she speaks to the visa applicant by phone and said she wants her to come to Australia for her brother. She referred to the review applicant’s medical condition.
The Tribunal accepts the families are aware of and are supportive of the marriage. However, no persuasive evidence of social recognition at the time of application was provided.
The parties have spent very little time together.
The nature of the persons’ commitment to each other
The Tribunal has considered the evidence provided in relation to the nature of the persons’ commitment to one another including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term.
Prior to the delegate’s decision the review applicant provided a Statement declaration of relationship dated 10 May 2016 in which he said his relationship with the visa applicant was “genuine and 100% based on true love that begun through my parent that made through the telephone conversation” to the visa applicant’s parents. He said they were introduced over the telephone and that they were in love but had not yet met. He said they had been in a relationship for two years.
The Tribunal asked the review applicant about the inception and development of the relationship. He said his parents and the visa applicant’s parents spoke a long time ago and decided they should marry. He said he first spoke to the visa applicant on 20 June 2014. His evidence regarding the development of the relationship was inconsistent and vague. He said they spoke every day but also said they spoke only when there was an important issue to discuss. The Tribunal asked the review applicant whether he had records of their telephone contact however he said he was not able to provide records or bills.
The Tribunal asked the visa applicant about the frequency of communication with the review applicant. She said they communicate every two or three days but later said the review applicant calls her every day.
The Tribunal accepts that the parties spoke by phone on a regular basis although when the frequency of the contact increased was unclear.
The Tribunal asked the review applicant a number of times about when he and the visa applicant made the decision to share their life together to the exclusion of others. He said he made the decision to propose two months before the marriage. He said he thought he made the decision to propose in 2016. He said he made the decision to propose when he met the visa applicant in person.
The Tribunal asked the review applicant how he knew he wanted to marry the visa applicant before he met her in person. His response was that their respective families were happy that they were to be married.
The Tribunal asked the review applicant about his statement dated 10 May 2016 in which he said the relationship was “genuine and 100% based on true love”. He said the statement was based on the phone conversations they had shared.
Prior to the delegate’s decision the visa applicant provided a Relationship History Statement in which she said she had been introduced to the visa applicant through her parents and the review applicant’s parents. She said she found the review applicant to be well mannered and of good character and that they had “come with understanding to live together for each-others”.
When asked what it would mean if the visa is refused the review applicant told the Tribunal it would be difficult and referred to his health issues.
When asked what it would mean if the visa is refused the visa applicant told the Tribunal that it would be very hard. She did not provide any reason for this statement or explain why it would be hard.
Regarding whether the requirements of s.5CB(2) were met at the time of application, the Tribunal was not satisfied the evidence demonstrated that the parties had a mutual commitment to a shared life together to the exclusion of others and the relationship was genuine and continuing. There was no persuasive evidence of social recognition of the parties’ relationship and the evidence with respect to the nature of the parties’ commitment to each other at that time was limited.
Therefore the visa applicant does not meet cl.309.211(2).
The Tribunal considered whether the visa applicant met the alternative criteria in cl.309.211(3). Clause 309.211(3) requires that at the time of application the visa applicant intends to validly marry a person who is an Australian citizen, Australian permanent resident or an eligible New Zealand citizen
In the present case the visa applicant made her application on the basis that she was the fiancé of the review applicant who is an Australian citizen. The Tribunal accepts that at the time of application the visa applicant intended to validly marry the review applicant. Therefore the visa applicant meets cl.309.211(3).
Whether the marriage has taken place and if so, whether the visa applicant continues to be the spouse as defined in s.5F at the time of decision
Clause 309.224 requires the visa applicant who has met the time of application criteria in cl.309.211(3) to evidence that the marriage has taken place and that she continues to be the review applicant’s spouse as defined in s.5F of the Act.
Section 5F of the Act 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 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 which includes the matters as set out in r.1.15A(3), which are the same matters set out in r.1.09A(3). A copy of r.1.15A(3) is also attached to this decision.
The evidence provided included a copy of a Marriage Certificate issued by the Islamic Republic of Afghanistan showing the visa applicant and the review applicant married on 18 May 2017. On the basis of the written evidence before it the Tribunal concludes that the marriage has taken place and that it satisfies the requirements for a valid marriage for the purpose of the Act as required by s.5F(2)(a).
Regarding whether the other requirements of s.5F are met at the time of decision, the Tribunal has had regard to all the circumstances of this relationship. The Tribunal finds that the parties spent no time together before they married and very little time together since they married. There was minimal evidence of social recognition of the parties’ relationship and no evidence of social recognition outside of immediate family. The Tribunal finds that the evidence with respect to the nature of the parties’ commitment to each other was limited. The Tribunal was not satisfied the evidence demonstrated that the parties had a mutual commitment to a shared life together to the exclusion of others and the relationship was genuine and continuing.
Given these findings, the visa applicant does not meet cl.309.224.
For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
Christine Kannis
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).
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).

[2018] AATA 5226

7 November 2018

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Immigration

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Judicial Review

Procedural Fairness

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