Ali (Migration)

[2024] AATA 2099

Ali (Migration) [2024] AATA 2099 (2 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nouroz Ali

REPRESENTATIVE:  Mr Ahmad Dostizada

CASE NUMBER:  2301223

HOME AFFAIRS REFERENCE(S):          BCC2019/6485719

MEMBER:Stephen Witts

DATE:2 May 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

·cl 100.221 of Schedule 2 to the Regulations

Statement made on 02 May 2024 at 3:16pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – genuine and continuing relationship – validly married in home country – financial, household and social aspects of relationship and nature of commitment – notification that relationship ceased and accusations of domestic violence – issues resolved and recommencement of relationship – births of two children – oral and documentary evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a), 65
Migration Regulation 1994 (Cth), r 1.15A(3), Schedule 2, cl 100.221(2), (2A)

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 13 January 2023 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 December 2019 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 100.221 because the delegate was not satisfied that the applicant and the sponsor were in a genuine spousal relationship.

5. The applicant appeared before the Tribunal on 2 May 2024 to give evidence and present arguments.

6. The Tribunal also received oral evidence from the sponsor Ms Arifa Yari.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant and the sponsor are in a genuine spousal relationship.

    Whether the parties are in a spouse or de facto relationship

11. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen.

12. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.

13. ‘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 parties’ 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

14. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

15. The Tribunal notes that it has been provided with a copy of the relevant delegate’s decision dated 13 January 2023. In this decision it was asserted by the delegate that the applicant lodged a valid application for a partner visa on 5 December 2019 on the grounds of being in a genuine spousal relationship with an Australian permanent resident, Ms Arifa Yari. It was stated that the applicant was granted a 309-partner visa on 22 December 2020 and arrived in Australia on 11 February 2021.

16. According to the delegate on 28 March 2022 the sponsor notified the Department of the cessation of that relationship. The Department asserted that it contacted the applicant in April 2022 inviting him to comment on the change of the relationship status and that a response was received in May 2022 claiming that the relationship had not ceased and that there was a child of the relationship. According to the delegate it contacted the applicant again requesting further information, but no response was received.

17. The Tribunal has also considered any evidence provided by the applicant prior to the hearing.

18. Included was an email from the applicant’s representative dated 16 March 2023 stating that the applicant and the sponsor are living together as husband and wife and that they now have a child, Mr Ali Raza Ali, who was born on 6 December 2021 and that they are the biological parents of the child and hold a shared responsibility.

19. Included was a birth certificate with a registration date of 24 February 2023 indicating the applicant and the sponsor as the parents of the infant indicating that he was born at Casey Hospital in Berwick on 6 December 2021, and that they were married on 18 June 2019 in Pakistan.

20. Also included was a bank statement covering letter from the Commonwealth Bank for the applicant dated 10 February 2023 and driving licences for the couple with the same address.

21. Also included were payslips for the applicant for January 2023 and a detailed bank statement in the applicant’s name from 2022 to January 2023.

22. Included also was an email sent to the Tribunal on 8 June 2023 with several photographs of the applicant and the sponsor with their child, another bank statement, this time in joint names, with transactions from 9 March 2023 until 2 June 2023.

23. Also included was an email dated 15 January 2023 with updated address details and the drivers’ licences of the applicant and the sponsor with updated addresses.

24. The Tribunal further notes that prior to the hearing the applicant provided another birth certificate for their second child Ms Zainab Ali, born to them at Casey Hospital in Berwick on 9 December 2023.

25. At the hearing the Tribunal had a detailed discussion with the applicant and the sponsor regarding the application.

26. The sponsor stated that from February 2022 until December 2022 the couple were separated and that during that time his wife indicated to the Department that the relationship had ceased. He stated that there were difficulties in the relationship that led to them separating for a few months. The applicant’s representative provided to the Tribunal a final court order from Dandenong Magistrate’s Court issued on 15 September 2022 in case number N10389025 stating that there had been accusations of domestic violence made by the applicant that had subsequently been resolved and that the final order allowed the sponsor to move back into the family home with their child at that time.

27. The applicant stated that these matters have now been resolved and that they are a couple again and that they have subsequently had another child on 9 December 2023. Evidence was also provided that the applicant does not have any family in Australia but that the sponsor has her father and three siblings and that she lived with them for a few months when they were separated for a few months during 2022.

28. The Tribunal had a discussion with the applicant and the sponsor regarding an assessment of the required key aspects of a relationship which is outlined below.

    Are the parties validly married?

29. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal notes that evidence of a marriage that took place in Pakistan in June 2019 is provided. 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?

30. The Tribunal now turns to an assessment of the requirements outlined in reg 1.15A(3)(a)-(d).

    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.

31. The Tribunal notes that evidence was provided by the parties regarding the pooling of financial resources through the operation of joint bank accounts and that it was demonstrated that the applicant’s salary as a factory hand was paid regularly into the joint account and that the sponsor accessed this account. The Tribunal also notes that the applicant and the sponsor are renting and do not own any property together but that there was evidence regarding the sharing of day-to-day household expenses and other such activities.

32. The Tribunal finds that this lends weight to a contention that the applicant and the sponsor are in a genuine spousal relationship.

    Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

33. The Tribunal notes that evidence was provided that the applicants have two children together, one born on 6 December 2021, and one born on 9 December 2023, and that they care jointly for these children. The Tribunal also notes that the applicant and the sponsor had provided evidence that they have lived together since February 2021 except for a period of a few months from February 2022 until December 2022. The Tribunal notes the evidence provided that the applicant and the sponsor have been living together again since that date.

34. The Tribunal finds that this lends weight to a contention that the parties are in a genuine spousal relationship.

    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.

35. The Tribunal notes the evidence provided via photos and testimonials that there is evidence of social aspects to this relationship and that this also lends weight to a contention that they are in a genuine spousal relationship.

    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.

36. The Tribunal notes evidence provided including their marriage, noting a separation for a period, the length of time they have lived together since February 2021, and the two children they have had together, and finds that this lends weight to a contention that the applicant and the sponsor are in a genuine spousal relationship.

    Any other circumstances of the relationship.

37. The Tribunal finds that it has assessed all the relevant circumstances under consideration.

38. The Tribunal therefore finds that the applicant and the sponsor have met the requirements of s5F(2)(b)-(d) and that they have demonstrated that they have a mutual commitment to a shared life to the exclusion of others, that they do have a genuine and continuing relationship, and that they do intend to live together and not separately and apart on a permanent basis.

39. Given these findings the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of this decision.

40. Therefore the applicant does meet cl 100.221.

41. 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 100 visa.

    DECISION

42. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

    ·cl 100.211 of Schedule 2 to the Regulations

    Stephen Witts
    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).