Amini (Migration)

[2019] AATA 4221

Amini (Migration) [2019] AATA 4221 (30 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ghulam Nabi AMINI

VISA APPLICANTS:  Mrs Ruqia AMINI
Ms Khadija Amini
Mr Jan Mohammed Amini
Mr Ghulam Sha Amini
Mr Ghulam Sakhi Amini
Ms Jamila Amini
Ms Masouma Amini
Ms Shiringul Amini
Mr Mohammad Dawood Amini
Mr Mahdi Amini

CASE NUMBER:  1911195

DIBP REFERENCE(S):  2013/020748

MEMBER:Steven Griffiths

DATE:30 August 2019

PLACE OF DECISION:  Adelaide

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

·cl.309.211of Schedule 2 to the Regulations

·cl.309.221of Schedule 2 to the Regulations

·r.2.03A

Statement made on 03 September 2019 at 2:54pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – genuine and continuing relationship – pooling of financial resources – shared household expenses – joint care of children – parties represented themselves as married while de-facto partners – high level companionship and emotional support – sponsor relocated to Australia due to safety concerns – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), rr 1.09A, 2.03A, Schedule 2, cls 309.211, 309.221       

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 17 April 2019 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant, Mrs. Ruqia Amini, applied for the visa on 22 May 2013 on the basis of their relationship with their sponsor, Mr. Ghulam Nabi Amini. 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 as 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 the delegate was not satisfied the first names applicant was the spouse or de-facto, as defined in s.5F or s.5CB respectively, of the Act, of the sponsor.  

4. The sponsor appeared before the Tribunal on 29 August 2019 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence, by telephone, from the first named applicant.

5. The sponsor was represented by his registered migration agent, who attended the hearing with the sponsor.

6. The Tribunal accepts that telephone communication with the applicant in Afghanistan failed after approximately 45 minutes of questioning, with 6 attempts to reconnect all failing. The Tribunal resolved that no further input was required from the applicant as to that time sufficient information had been provided for a decision to be made without the merits of the visa application being disadvantaged.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal has taken into consideration all the evidence in the Department of Immigration file and the Tribunal file, including additional information provided to the Tribunal and the evidence from the Tribunal hearing.

   ISSUE

9. The issue is whether the first named visa applicant is the spouse, as defined in s.5F of the Act, or the de-facto, as defined in s.5CB of the Act, of the sponsor.

   BACKGOUND OF THE EVIDENCE

10. Mr. Amini was born in Hosayni, Oruzgan-E-Khas, Afghanistan in 1970. His parents are deceased, and he had two brothers, born 1975 & 1979 with one missing and one deceased, and has a sister, born 1982, living in Iran. He states he has eight children, born between 1997 and 2008, with two women he married. He married the first named applicant in 1996, on the day he met her. He left Afghanistan on 1 October 2011 to seek asylum in Australia, arriving on 23 April 2012. His first wife was Feroza Amini, born 1971, who he states he married in 1992 and reports to have died in December 2002.

11. Mrs. Amini was born in Urozgan, Afghanistan, in 1978. Her father is deceased, with her mother, born 1955, living in Afghanistan. She does not have any siblings. She married Mr. Amini on 1/1/96 and has three daughters and two sons, born 2000, 2003, 2005, 2008 & 2012 and four other dependants, being the children of the first wife of her partner, who were born in January 1997 (twins), December 1997 and 2001. 

    INFORMATION TO THE TRIBUNAL

12. Since the Department made a decision the sponsor has provided further information to the Tribunal including:-

    St. Vincent’s Hospital, Melbourne, support letter 16/7/19

    Migration Agent submission

    Copies of money transfers – 30/10/18 $ 1000, 27/11/18 $ 0 (not yet paid), 29/11/18 $ 1000, 7/1/19 $ 1350, 13/2/19 $ 1000, 6/3/19 $ 1000, 3/4/19 $ 1000, 20/5/19 $ 1000, 29/5/19 $ 1000, 1/6/19 $ 370, 11/6/19 $ 190, 23/6/19 $ 4950 – total of $ 13,860 over 11 transfers in 8 months

    School payment records in Afghanistan for 2019

    Is the sponsor an Australian citizen, Australian permanent resident of eligible New Zealand citizen?

13. 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. The Tribunal has regard to Department of Immigration records confirming the sponsor is an Australian Permanent Resident. 

    Whether the parties are in a spouse or de facto relationship

14. ‘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).

15. 'De facto partner' is defined in s.5CB of the Act, which 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).

    Are the parties validly married?

16. The parties claim to have married on 1/1/96, being the day they met, in Afghanistan. In support of their marriage, the parties have provided a Marriage Confessor’s statement, issued on 30/11/13, with the statement not specifying a wedding date while recording the sponsor was 26 years old at the time. 

17. The Tribunal notes from the Decision Record dated 17 April 2019, of the Delegate of the Minister for Immigration that a Marriage Confessor’s statement has no legal significance in Afghanistan and is not registered within any official Afghan authority. The Decision Record goes on to state that for marriages to be legally recognised in Afghanistan they must be registered with the Afghan Family Court.

18. The Tribunal determines, on the documented and oral evidence of the parties, as the sponsor was already married, to his now deceased first wife, at the time of the marriage to the primary applicant, being his second wife, that the second marriage is not legally recognised in Australia and the parties are not 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 parties in a de facto relationship?

19. 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 married 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).

20. 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. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (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 expense

21. The Tribunal determines, from the oral evidence provided, at the time of the visa application and this decision, no real estate was jointly owned by the parties. The Tribunal notes the evidence of the parties of property formerly being owned in Afghanistan, with this lost when the family was forced to vacate their home due to safety concerns.

22. The Tribunal determines, from the oral evidence provided, at the time of the visa application and this decision, the parties do not have any joint liabilities.

23. The Tribunal determines, from the oral evidence provided, at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.

24. The Tribunal accepts the documented and oral evidence that the sponsor is a farm hand and has worked since coming to Australia and possessing work rights.

25. The Tribunal accepts the oral evidence of the parties that the oldest children have been required to collect the funds sent to the family by the sponsor at the local collection office, and notes the photographic evidence of injuries to the oldest son of the parties when he was attacked and money to the value of Australian $ 1000 stolen.  

26. The Tribunal accepts the documented evidence of money transfers from the sponsor to the applicants for 2017, 2018 and 2019 totalling $ 22,898. The Tribunal accepts the oral evidence, confirmed by the parties of money transfers from the sponsor to the applicants starting in 2013 and that the applicants are totally reliant upon these transfers for all living, education, clothing and food expenses.

27. The Tribunal determines, at the time of the visa application and this decision, that the parties fully pool financial resources, especially in relation to major financial commitments.

28. The Tribunal determines, at the time of the visa application and this decision, that the parties, share day-to-day household expenses. 

    Nature of the household aspects that must be considered include:-

    (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

29. The Tribunal accepts the photographic, documented and oral evidence of the parties having 9 children, with all being secondary applicants, 5 being of the primary applicant and 4 from the deceased, first wife of the sponsor.

30. The Tribunal accepts the photographic, documented and oral evidence of the parties that all the children live with the primary applicant and have since the sponsor was forced to leave the family in October 2011 due to safety concerns, with the parties in daily contact about the need of the children and make joint decisions on issues impacting on the children.

31. The Tribunal, in accepting this evidence, determines, as at the time of application and this decision, that the parties have joint responsibility for the care and support of their 9 children. 

32. The Tribunal accepts the oral evidence of the parties, confirmed independently and with the parties confirming they are illiterate, of the commitment they have made to the education of the children, with the 3 eldest currently preparing for intake to a university, the other 6 all attending school and the desire for all 9 children to pursue further education opportunities.

33. The Tribunal accepts the photographic, documented and oral evidence of the primary and secondary applicants living in rented accommodation in Afghanistan, funded by the sponsor, while the sponsor lives in a rented home, with a male co-tenant, in Shepparton, Victoria, and has previously lived and worked in South Australia.  

34. The Tribunal accepts the oral evidence of the parties that, if permitted to live in Australia, the family will live in a single home, with the location and State not yet determined.

35. The Tribunal accepts the oral evidence, confirmed by the parties independently, on the roles each undertook in living together in Afghanistan, notes the cultural issues attached to household roles, and determines, at the time of application and this decision, the parties live in different countries and are unable to have any shared responsibility for housework, placing little weight on this area.

    Social aspects of the relationship that must be considered include:-

    (i)whether the persons represent themselves to other people 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

36. The Tribunal notes the visa application included the details of the parties being married since 1 January 1996, and in support a Marriage Confessor’s statement was provided, dated 13 November 2013.

37. The Tribunal notes the Decision Record by the Delegate to the Minister for Immigration, in refusing the application, resolved that as a Marriage Confessor’s statement has no legal status in Afghanistan, with marriages required to be registered with the Afghan Family Court, and thus not recognised by Australian legislation, the parties were declared to be in a de-facto relationship and not married.

38. The Tribunal determines, on the documented and oral evidence of the parties, as the sponsor was already married, to his now deceased first wife, at the time of the marriage to the primary applicant, being his second wife, that this second marriage for the sponsor is not legally recognised in Australia and the parties are not married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

39. The Tribunal discussed this issue with the parties and the Migration Agent, with the Tribunal accepting that a “wedding” ceremony was held, being one which does not allow for legal recognition, and determines the parties do, and always have, considered themselves to be married and have represented themselves to all others as being married while officially being de-facto partners.

40. The Tribunal accepts the documented and oral evidence of friends of the parties and determines, at the time of application and this decision, the opinion of family and friends as being supportive of the relationship.

41. The Tribunal accepts the parties have lived in different countries since 1 October 2011 and that for much of their time together since 1996 the upheaval and security concerns in Afghanistan have meant that social activities did not occur.

42. The Tribunal determines that at the time off application and this decision, as a result of living in different countries since 1 October 2011, that the parties have not planned and undertaken joint social activities, but resolves to attach little weight.     

    Nature of the commitment to each other that must be considered include:-

    (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.

43. The Tribunal accepts the evidence of the parties meeting on 1 January 1996, and taking part in a “wedding” ceremony that day, thus being in a relationship from which they now have 5 children.     

44. The Tribunal accepts the documented and oral evidence of the parties living together and determines the lived together in Afghanistan from 1 January 1996 to 1 October 2011 at which time the sponsor left his family and later Afghanistan due to personal safety concerns.

45. The Tribunal notes the oral evidence of the parties that the sponsor was unable to communicate with his family for 5 months after leaving home. 

46. The Tribunal accepts the documented and oral evidence of the parties that the sponsor arrived in Australia on 23 April 2012 and has since that time devoted his life to establishing an opportunity for his family to be supported financially in Afghanistan until he was able to bring them to Australia.    

47. The Tribunal accepts the oral evidence of the parties on the daily contact they have been able to establish and determines, at the time of application and this decision, that an exceptional high level of companionship and emotional support occurs between the parties.

48. The Tribunal notes the oral evidence from the parties of the personal safety issues for the family in Afghanistan, and the involvement of the sponsor on a daily basis of talking with the applicant about the needs of the family and being involved, remotely, in family decisions and determines this to be an example of the companionship and emotional support that occurs between the parties.  

49. The Tribunal determines, from the oral evidence of the parties and the cultural importance attached to relationships in Afghanistan, that the parties, at the time of application and this decision, have had and continue to have an ongoing commitment to each other and see the relationship as being long-term.

    Any other circumstances of the relationship

50. The Tribunal notes the health issues of the sponsor and accepts the documented evidence from his treating medical professionals in which they state that the presence of the sponsor’s family in Australia will significantly assist him with his recovery from the needed surgery. 

51. The Tribunal notes the documented and oral evidence of the sponsor travelling to Pakistan in 2014 and 2017, for approximately 13 weeks each time, seeking to obtain the necessary permission in the hope for his family to travel from neighbouring Afghanistan to visit him. The Tribunal further notes the oral evidence of the upheaval that has continually occurred since the parties were last together in October 2011, and accepts the oral evidence of the parties of the applicants being unable to obtain the necessary approvals to cross the border and spent time with the sponsor in Pakistan. 

    Whether the parties are related by family

52. The Tribunal accepts the oral evidence of the parties and determines they were not related by family when entering the relationship.

53. The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together to the exclusion of all others, with the relationship genuine and continuing and they had and previously and will, in Australia, live together.

1. The Tribunal accepts that the parties have been in a committed relationship since 1 January 1996 and have 5 children together, while also accepting total responsibility for the 4 children of the sponsor from another relationship, with the 9 children being secondary visa applicants and determines that while they have been physically apart since 1 October 2011 they are not living separately and apart on a permanent basis. 

2. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of the visa application and the time of this decision.

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

   Are the additional criteria for a de facto relationship met?

4. 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.

5. 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.

6. 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. The Tribunal accepts the parties have been in a relationship since 1 January 1996. Accordingly, the Tribunal is satisfied that the applicant has been in a de facto relationship for at least the 12 month period ending immediately before the date of application.

7. The Tribunal considers all secondary applicants should be reconsidered in lights of its findings on the primary applicant.

8. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.

   DECISION

9. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl.309.211of Schedule 2 to the Regulations

   ·cl.309.221of Schedule 2 to the Regulations

   ·r.2.03A

   Steven Griffiths
   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).