Arib (Migration)

[2019] AATA 3678

Arib (Migration) [2019] AATA 3678 (1 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohammad Anas Arib

VISA APPLICANTS:  Mrs Zahra Noori
Miss Tahmin Noori
Mr Mohammad Tamim Noori
Miss Soman Noori
Miss Zohra Noori
Mr Samim Ahmad Noori

CASE NUMBER:  1700887

DIBP REFERENCE(S):  BCC2016/141841

MEMBER:Hugh Sanderson

DATE:1 July 2019

PLACE OF DECISION:  Sydney

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.309.211 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 01 July 2019 at 8:39am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional) –parties validly married – parties represented themselves as married to each other – relationship recognised by friends and family as genuine and continuing – financial support – companionship and emotional support – mutual commitment to shared life to exclusion of all others – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5
Migration Regulations 1994 (Cth), r 1.15A, 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 5 January 2017 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 (the visa applicant) applied for the visa on 7 January 2016 on the basis of their relationship with their 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 the delegate was not satisfied the visa applicant was the spouse, as defined in s.5F of the Act, or the de facto partner, as defined in s.5CB of the Act, of the review applicant.

   Background

4. The review applicant was born in Afghanistan and is currently 58 years old. He first entered Australia in 2003 and became an Australian citizen in 2005. He was previously married and divorced his wife on 2 February 2015. He had three children from that relationship, one of whom died in 2011 in a drowning accident. His surviving children are aged 27 and 21 years old. He has three siblings who continue to live in Afghanistan.

5. The review applicant is a citizen of Afghanistan and is currently 54 years old. She was previously married and her husband died in 2007. She has five children of that relationship who are the second named visa applicants. They are currently 20 years, 20 years, 19 years, 14 years and 12 years old.

6. The review applicant’s movement records show that since 2010 he has travelled out of Australia as follows:

   ·From 1 August 2013 to 15 September 2013;

   ·From 13 November 2015 to 1 December 2015;

   ·From 19 April 2017 to 14 May 2017; and

   ·From 12 May 2018 to 5 June 2018.

7. The parties claimed they first met each other in August 2013 in Afghanistan at a party held by the review applicant’s sister-in-law who was a friend of the visa applicant. After the review applicant returned to Australia, he arranged for his sister-in-law to speak to the visa applicant to allow him to telephone her. They communicated with each other after that time and the review applicant proposed marriage to the visa applicant, asking for her and her children to come and live with him in Australia.

8. When the review applicant returned to Afghanistan in November 2015 the parties arranged their marriage. They were married on 20 November 2015. A copy of the Marriage Certificate issued by the Supreme Court of the Islamic Republic of Afghanistan was provided to the Department. Various documents were provided in support of the application including statements by friends and relatives claiming the relationship is genuine and financial information of the review applicant.

9. The delegate who considered the application first considered whether the marriage between the parties was valid. In considering this, the delegate noted the following:

   ·The photos provided of the marriage ceremony indicated the visa applicant was with the review applicant and a religious scholar (mullah) witnessing the signing of the marriage certificate being the green booklet indicating as being issued by the Afghan Supreme Court;

   ·A mullah will only be involved in the ceremony and signing of a nika nama and not the registration booklet which is completed at the relevant court;

   ·The nika nama has no legal significance as it is not registered with the appropriate authority;

   ·As there was no evidence that the nika nama was registered it would not be considered a marriage under the civil law and thereby recognised as valid under Australian law; and

   ·The visa applicant stated that the wedding was only at her home with the mullah and witnesses and about 15 guests, a small number for a usual marriage in Afghanistan.

10. Based on this information, the delegate was not satisfied that the parties had been validly married and therefore did not meet the requirements of s.5F of the Act. The delegate then went on to consider whether the parties were in a de facto relationship. In considering this, the delegate noted the following:

    ·There was little information as to the financial aspects of the relationship and no evidence that the review applicant provided any financial support to the visa applicant;

    ·The parties live in separate countries and (at the time of the decision) had only claimed to have stayed in the same home together for two weeks;

    ·Statements were provided by family members claiming that the relationship was recognised them as genuine;

    ·The photos from the wedding did not indicate any public announcement of any claimed relationship;

    ·There was limited information of any commitment by the parties to the relationship;

    ·An officer from the Department attempted to contact the review applicant to interview him and when attempts were made in December 2016 to interview the review applicant it became clear that the person who was providing information to the officer was not the review applicant although he claimed to be;

    ·When interviewed, the visa applicant provided inconsistent claims as to how the relationship started; and

    ·The review applicant (at the time of the decision) had not returned to Afghanistan since the claimed marriage or spent any time with the visa applicant.

11. Taking these matters into account, the delegate was not satisfied the parties were in a genuine and continuing relationship. The delegate found the applicant was not the spouse, as defined in s.5F of the Act, or de facto partner, as defined in s.5CB of the Act, of the review applicant and therefore did not meet the criteria in cl.309.211(2) and refused the application.

    Information to the Tribunal

12. The review applicant provided further information to the Tribunal including the following:

    ·Photos of the parties together in Afghanistan;

    ·Screenshots of Internet chats;

    ·Letter from Dr Hamid, general practitioner, dated 20 July 2017 noting the review applicant suffers from major depression, anxiety, post-traumatic stress disorder and has poor concentration and memory and is concerned about being separated from his wife; and

    ·Statements from friends in support of the application.

13. The review applicant appeared before the Tribunal on 6 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the eldest son of the review applicant, the review applicant’s landlady and the visa applicant. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

14. The parties gave consistent information as to various aspects of their lives and their relationship. This included details of each other’s relatives, where they are living, events in each other’s lives and their contact with extended family members. The review applicant gave details of the arrangements made for their marriage and the registration of that marriage in Afghanistan with the relevant authorities. The parties provided details of their plans for their future together.

15. The review applicant’s son gave convincing information about his father’s relationship with the visa applicant and the benefits he has observed his father has from the relationship. He provided details of his own trip to Afghanistan with his brother where they visited the visa applicant and her family as well as other relatives in Kabul.

16. The review applicant’s landlady gave information about her knowledge of the relationship, including being asked by the review applicant to take presents to the visa applicant and her family when she travelled to Afghanistan and the regular contact that she sees he has with the visa applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the visa applicant is the spouse or de facto partner of the review applicant.

    Whether the parties are in a spouse or de facto relationship

19. 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.

20. ‘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 r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

21. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

22. The delegate who considered the application was not satisfied the parties had been validly married under Afghani law. Although a marriage certificate was provided, the delegate noted the photos taken of the wedding ceremony showing the parties with a mullah signing the certificate. The delegate was not satisfied the document provided was the marriage registration booklet which is completed at the relevant courts.

23. In their decision, the delegate noted that at the time of the making of the decision independent verification had not been conducted on the marriage certificate with the Afghan government authorities. The Department’s records indicate that the marriage certificate had been “initiated for verification checks” on 14 December 2016. There is no information provided by the Department as to the result of that verification check or if indeed it was carried out.

24. The Tribunal wrote to the Department on 17 April 2019 requesting the Department arranged for the verification of the marriage certificate. On 24 April 2019 the Department advised the Tribunal that they were unable to verify Afghan documents. The relevant Department advised they are only able to verify Tazkiras and were not able to verify other documents including marriage certificates, birth certificates, drivers licence, or passports.

25. The review applicant provided detailed information to the Tribunal as to the process he and the visa applicant went through to organise their marriage. This included conducting a wedding ceremony with a mullah and arranging all the certificates to be registered with the appropriate court.

26. The marriage certificate provided by the visa applicant to the Department, with the translation, is consistent with the marriage of the parties taking place in Afghanistan and then being registered by the courts. It was not in dispute that the review applicant had divorced his prior wife and the visa applicant’s husband was deceased. There would be no reason why the parties would not have completed the formal civil requirements for the marriage or only participated in part of the process to be married.

27. In all the circumstances, the Tribunal is satisfied that the parties were married in Afghanistan on 20 November 2015 and that the marriage was registered with the appropriate civil authorities in Afghanistan and is recognised under Afghani law as a valid marriage. The marriage between the parties in Afghanistan is recognised as valid under Australian law.

28. The Tribunal finds that 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?

    Financial aspects

29. The parties live in separate countries. Neither the visa applicant nor the review applicant has any significant assets of their own. It is not surprising, therefore, that the parties do not have any joint ownership of any assets, joint liabilities or are sharing day-to-day household expenses.

30. The review applicant is in receipt of a disability pension and has little or no savings. Despite this, he has been sending money regularly to the visa applicant to provide financial support to her and her children. He has received assistance from his son to be able to provide financial support. The visa applicant was previously working as a domestic helper prior to her marriage with the review applicant. Since then she has not been in paid employment and has been dependent upon the financial support of the review applicant to meet the expenses for herself and her children.

31. Although limited, the Tribunal finds the financial aspects of the relationship, in light of the circumstances of the parties, supports a finding that the parties are in a genuine and continuing relationship and that they have a mutual commitment to a shared life as husband and wife to the exclusion of all others.

    Household

32. Again, as the review applicant lives in Australia and the visa applicant lives in Afghanistan there is little information which would indicate the parties have established a household together.

33. The review applicant has returned to Afghanistan to stay with the visa applicant and her children on one occasion since the parties were married. This was in April 2017. Over that time, the parties lived together in the visa applicant’s home and the review applicant was cared for by the visa applicant. Although the review applicant was involved in the visa applicant’s children’s lives at that time, the Tribunal finds that he was not involved in the responsibility for the care of the children in light of their ages. As indicated above, he has provided financial support for the visa applicant’s children.

34. The review applicant has not returned to Afghanistan since travelling there in April – May 2017. He travelled to Holland in 2018, details of which the visa applicant was aware of. The parties gave consistent information that the security concern of the situation in Afghanistan was one of the main reasons why the visa applicant told the review applicant he should not travel to Afghanistan. The Tribunal accepts the evidence of the review applicant’s son that he also discouraged the review applicant travelling to Afghanistan due to the adverse effects it had on his health.

35. Although limited, the Tribunal finds that the parties for a short period did established a household together which was indicative the parties living in a genuine and continuing relationship. Overall, however, the Tribunal places little weight on this aspect when considering the genuineness of the relationship.

    Social aspects

36. The parties participated in a religious ceremony for their wedding. Friends and relatives were invited to this wedding. The review applicant has stayed in the home of the visa applicant when in Afghanistan. This was at the time of their wedding and also when he returned to Afghanistan in 2017. Photos have been provided of the review applicant and the visa applicant and her children together in Afghanistan.

37. The review applicant has not returned to Afghanistan due to the security concern in Kabul and also the fact that when he has travelled to Afghanistan his health has been adversely affected. The Tribunal accepts that this has been the reason the review applicant has not been able to spend more time with the visa applicant.

38. The review applicant’s family and friends in Australia are aware of his relationship with the visa applicant. His landlady when she returned to Afghanistan took with her presence from the review applicant to give to the visa applicant and her family. She has regularly heard the review applicant speaking to the visa applicant over the phone and he has represented himself as being in a relationship with her.

39. The review applicant’s children have also travelled to Afghanistan and spent time with the visa applicant and her children there. The visa applicant’s eldest son has established a group chat line so that he can continue to be in touch with the visa applicant’s children in Afghanistan. He has provided screenshots of the Internet communication that has been used between the visa applicant and her family and the review applicant and his family in Australia.

40. Overall, the Tribunal finds that the parties have represented themselves as being married to each other and that their relationship is recognised by their friends and family members as being genuine and continuing. The families of the review applicant and the visa applicant recognise that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal places significant weight on the recognition by the review applicant’s children and his friends of the visa applicant’s relationship with the review applicant when considering the genuineness of the relationship.

    Commitment to each other

41. The parties were first introduced to each other by the review applicant sister-in-law in Afghanistan in August 2013. At that time, the review applicant had separated from his wife after the death of their son though he had not divorced her and the visa applicant was a widow. In light of the circumstances of both parties at the time, it is not surprising that a relative of the review applicant and a friend of the visa applicant considered that matching them would be a good thing for them. Their relationship developed after that time. After the review applicant divorced his wife, he returned to Afghanistan and the parties were married on 20 November 2015. They have now been married for almost 4 years.

1. The parties have continued to be in communication with each other over that period. The parties provided consistent information during the hearing before the Tribunal as to different aspects of their lives and the activities of their children. Evidence has been provided from the review applicant’s landlady of her knowledge of the amount of communication the review applicant has with the visa applicant. She provided information as to the emotional support the review applicant obtains from speaking to the visa applicant and her children.

2. The review applicant has been diagnosed as suffering from multiple medical conditions. This includes depression and anxiety which is probably associated with multiple reasons, including the circumstances of the death of his son. The review applicant’s doctor has provided a statement where he supports the application, in part because of the support the visa applicant provides to the review applicant.

3. The parties provided consistent information as to their plans for their future together in Australia. This included the arrangements that would be in place once the visa applicant and her family arrived in Australia. This information was corroborated by the evidence of the review applicant’s son. It is clear the parties have discussed their plans for their future together with all members of their family. They consider their relationship as long-term.

4. The Tribunal finds that the parties provide each other the degree of companionship and emotional support which would be expected in a genuine and continuing relationship and one where they have a mutual commitment to a shared life as husband and wife. The plans they have discussed indicate they intend to live together on a permanent basis.

   Overall assessment

5. The Tribunal has considered all the circumstances of the parties both individually and cumulatively. The Tribunal places significant weight on the social aspects of the relationship and also the commitment the parties, and their families, have shown to the relationship. The Tribunal finds that the relationship between the visa applicant and the review applicant has the support of the extended family members of the parties and that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal finds the relationship between the parties is genuine and continuing and that the parties intend to live together.

6. 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.

7. Therefore the visa applicant meets cl.309.211 and cl.309.221.

8. 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

9. As the primary visa applicant meets these criteria for the grant of the visa, the applications of the second named visa applicants are remitted so that they can now be reconsidered in full.

   DECISION

10. 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.309.211 of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Hugh Sanderson
    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).