Arif (Migration)

[2018] AATA 3708

Arif (Migration) [2018] AATA 3708 (8 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adil Arif

CASE NUMBER:  1620054

DIBP REFERENCE(S):  BCC2015/1804576

MEMBER:Fiona Meagher

DATE:8 August 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

·cl.820.211(2)(a) of Schedule 2 to the Regulations

·cl.820.221 of Schedule 2 to the Regulations

Statement made on 08 August 2018 at 5:16pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Spouse of sponsor – Marriage certificate – Joint bank account – Lease agreements – Sponsor’s health – Resides together – Limited social events – Intention to travel together – Evidence from witnesses – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 375A, 359AA
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2 cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 8 November 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 24 June 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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.820.211(2)(a) and consequently cl.820.221 because the delegate was not satisfied that the visa applicant was the spouse of the sponsor. The delegate considered that the evidence and information provided in support of the application was not sufficient to demonstrate that the applicant satisfied the definition of spouse under s.5F of the Act.

4. The applicant appeared before the Tribunal on 25 January 2018 and 12 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ryder, Mr Simon Davis, Mr Gordon, and Ms Yvonne Tutoatasi Rita Gordon. The applicant and sponsor were supported by Mr Gordon, the sponsor’s father at the hearing. He had come especially from New Zealand for the purpose of giving evidence and supporting them.

5. The 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

7. The issue in the present case is whether the applicant is the spouse of the sponsor.

8. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the 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 applicant claims to be the spouse of the sponsor who is an Australian citizen.

9. ‘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 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. On the evidence, a New South Wales marriage certificate dated 23 January 2014, 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 spousal relationship met?

11. The applicant provided information to the department including joint bank account statements, correspondence sent to the applicant and the sponsor at an address in Hoppers Crossing Victoria, correspondence to the applicant and sponsor at an address in Werribee Victoria, utilities bills, correspondence to the applicant and sponsor to an address in Noble Park Victoria, correspondence to the sponsor to an address at Hallam in Victoria, a lease agreement in the name of the applicant in respect of a property in Hallam Victoria, travel documents indicating joint travel, and separate travel, photographs, extracts of text message records, marriage certificate, correspondence in relation to the sponsor’s health and relationship statements.

12. The applicant and sponsor produced substantially more material before the Tribunal, which included numerous documents in relation to the parties’ shared address, such as a tenancy agreement, extracts of bank statements, and correspondence addressed to the applicant and the sponsor at common addresses. They also provided a substantial amount of correspondence in relation to the sponsor’s health, confirming that she is often accompanied to her medical appointments by the applicant, or otherwise assisted by him. As well two photograph albums were provided showing the parties together in a variety of settings.

13. The Department file contains material covered by a certificate pursuant to s.375A of the Act, which restricts the applicant’s access to certain documents in the departmental file. The Tribunal provided the applicant with a copy of the certificate and asked for submissions in relation to the validity thereof. The applicant indicated he had no comment to make in relation to the validity of the certificate. The Tribunal is satisfied that the certificate is at least partially valid to the extent that it identified the documents to which it pertains, and they may may enable a person to identify a “confidential source of information”. Accordingly, the Tribunal put the gist of the information to the applicant, and the sponsor.

14. Before the Tribunal put particulars of information to the applicant, it explained the operation of s.359AA of the Act, including the reasons why the information put to him was relevant, and advising him he could seek an adjournment to respond to the information if he wished. The particulars of the information put to the applicant were that the department had received information that he had paid the sponsor to participate in a contrived relationship, and that further he had assisted in procuring other women to act as sponsors for men from Pakistan.

15. The applicant did not request time to consider his response to the particulars of information put to him. He told the Tribunal that he and the sponsor had been together for many years, that it would be against his principles to act in such a way, that his bank account statements revealed no indication he had ever had money to pay a sponsor, and suggested that the information may well have come from some of his relatives located in Melbourne who resent the fact that he has an Australian wife who requires his time, attention and money. The applicant said that prior to being married he had given considerable assistance and money to his Melbourne relatives, but that now with a wife to support he is no longer able to do that. Further, the applicant said that he was sending any spare money he had to his family in Pakistan.

16. The sponsor had a similar response to the allegations, when they were put to her.

    Inception and development of the relationship

17. The applicant and sponsor gave similar evidence regarding the development of their relationship. They said that they met on scout, a dating while the sponsor was living in Griffith and the applicant was living in Melbourne. The evidence was that the parties started talking to one another in October, and met in person in November. The circumstances of the meeting were, according to the applicant, that he drove to Griffith and met the sponsor at 4 AM in the morning where he sneaked into her parents’ house and stayed for one hour. At the time her parents were asleep. He then said that he was scared so he left and went to a nearby hotel, where the sponsor joined him between 9 AM and 12 noon. According to the applicant, the sponsor was observed by one of her family friends at the hotel when she joined the applicant, and when she returned to her house her parents were very angry and subsequently “kicked her out”.

18. The parties claimed that the sponsor’s parents were very strict with the sponsor because of her long-standing illness of lupus. However, the applicant did not know of the sponsor’s condition at this time. According to the applicant, upon driving the sponsor home, he commenced his return journey to Melbourne, which he nevertheless terminated after driving approximately 40 km when he turned back to collect the applicant, the reason for his change of mind being his increasingly growing concern for the sponsor’s welfare as he was aware of her potential homeless status due to being turned away from home by her parents.

19. The parties told the Tribunal that initially they stayed in Melbourne for a couple of nights in a van, and then moved to an address at Hopper Crossing, and then subsequently to an address in Werribee. The parties claim to have lived together at a variety of addresses in Victoria for about 18 months. They married on 23 January 2014. According to the applicant he returned to Pakistan for two weeks in June/July 2015, at which time the sponsor came to Brisbane to be cared for by her family because she was too ill to be left alone. Upon the applicant’s return from Pakistan, the parties claim to have been apart for a period of 4 to 5 months, with the applicant in Melbourne and the sponsor in Brisbane. The parties claim to have visited each other every weekend, and they claim that that is at least partially evidenced by the numerous travel documents between Brisbane and Melbourne.

20. The Tribunal had significant difficulty with the plausibility of the applicant’s and sponsor’s claims with regard to the development of their relationship, and marriage. As a consequence the Tribunal spent a very significant amount of time discussing those matters with the applicant, and the sponsor. The applicant said that he married the sponsor so quickly because extramarital sex was not accepted in his religion. The sponsor said that she could not remember any of the details of the marriage proposal. She said that her mother (and some other relatives – not her father) attended the marriage because they thought that the applicant might have money. The applicant said that the proposal occurred when they were in the car and having a random chat. He said the sponsor said she would marry him if he promised not to leave her. The applicant said that in hindsight, if he had known the extent of his wife’s medical condition, he may not have married her because caring for her is a significant burden. The applicant was unable to give a consistent account as to when and where the parties completed their intention to marry paperwork.

    Financial aspects of the relationship

21. The applicant said that he has worked as a cleaner, and the sponsor gets Centrelink payments. He said that he pays the bills and that the parties have joint credit cards and bank accounts. He said that from time to time he struggled to obtain work, and the parties accordingly struggled financially. He also said that the sponsor has a substantial debt, from which he has not shied away – instead he is trying to pay it down. The applicant said that the sponsor’s medication was very expensive, and she was able to get it for free in Queensland, as opposed to in Melbourne where it costs $400 per fortnight.

    Nature of the household

22. The Tribunal took into consideration the consistent evidence of the parties that the applicant does the bulk of the housework, including cooking and cleaning, as his wife is often too unwell to help. At the hearing in January, the applicant and sponsor both said that due to the sponsor’s health, it may not be possible for them to have children (although they would like to), but they would consider adopting. By the hearing in June 2018, the sponsor’s health had improved to the extent that the parties were discussing having a child with the sponsor's doctors. The parties explained that they had had multiple addresses because of the difficulty the applicant had had in obtaining permanent work. At the hearing in January 2018, the applicant indicated that they were about to sign a lease and move into long-term rented accommodation due to the fact that he now had a permanent job.

23. At the hearing in June 2018 the Tribunal heard from Mr Davies, the parties’ current landlord. He said that the applicant and sponsor had been renting from him for about four months. He said that they rent the upstairs portion of his house and he lives downstairs. He said that he sees them together all the time. Mr Davies told the Tribunal that the parties do not fight, appear very loving toward one another, spend time together, go out and socialise together and that the applicant helps the sponsor when she feels unwell. Mr Davies said that the only problem with the parties as tenants is that they have two dogs which bark and dig holes. Mr Davies said the applicant is in the process of addressing that issue.

    Social aspects of the relationship

24. The applicant told the Tribunal that the parties did not socialise much due to his wife’s health. He said that this was particularly the case during the early part of the relationship when they had little money and his wife was very ill. He said at that time he had no money, time or energy to socialise stop He said that her family attended the wedding, and that his family in Pakistan know of the marriage and approve of it. He said that he has some cousins in Melbourne who initially were supportive, but have now become difficult – perhaps because his wife took all his attention after they married. The sponsor’s view is that the applicant’s cousins do not like her because she is not Muslim. Both the applicant and sponsor told the Tribunal that they speak regularly with the applicant’s parents, particularly his father who speaks some English. They both stated that they wished to visit the applicant’s parents in Pakistan.

25. In relation to the social aspects of the relationship, Mr Ryder gave evidence. He said that he knows the applicant through work, and coincidentally knew the sponsor through rugby. Mr Ryder coaches rugby teams, and in that context has met the sponsor’s cousins. Mr Ryder told the Tribunal that he and his girlfriend have socialised with the applicant and his wife. He said that they sometimes go out together for lunch and dinners. Mr Ryder said indefinite terms that the applicant and sponsor were a genuine couple, who are so far disappointed that they had not had children. He said that he had heard them talk of buying a house together and that they had other dreams and aspirations which he believed were indicative of a genuine relationship.

26. The Tribunal also heard evidence from Mr Gordon, the sponsor’s biological father. Mr Gordon told the Tribunal that he has ongoing contact with the parties. He said that he knows they are honest, and that his daughter would not take money to marry. He expressed indignation at the suggestion that she would do such a thing. Mr Gordon said that he thought that the reason the sponsor’s mother was not now supportive of the marriage is because of the religious differences, and the fact that the applicant is unable to honour the Samoan culture of making a contribution to his wife’s family. Mr Gordon said that he had been staying with the applicant and sponsor for about five or six weeks, and helping them out around the house. He corroborated the applicant’s claims that he does most of the housework and said that he sees the parties regularly go out together.

    Nature of the persons’ commitment

27. The applicant was adamant about his commitment to the sponsor. He said that he would not have married her given her health, her debts and the fact that he had a student Visa, which he gave up when he married her, if he were not committed. He also said that his commitment was evidenced by the fact that he does all housework, and does not see it as a burden but rather as a responsibility. He said that now that he is married, his wife is his responsibility, socially, morally and by way of religion. The sponsor’s evidence was that she desperately wants her marriage to be approved by the grant of the Visa. She said that she has no one else to care for her, and she is worried about going to Pakistan, on a long-term basis, with her husband, if that is necessary (because he does not obtain a Visa), and becoming even more ill. Both parties said that they intended to visit Pakistan as soon as possible, where they intend to stay with the applicant’s sister in Islamabad. The applicant said that they will go to his village, and meet his family, but that they could not stay in his village as it would not be comfortable enough for the sponsor. The applicant said that his mother would come and stay with them in Islamabad.

28. As canvassed earlier, the Tribunal has some serious concerns regarding this case. The parties were not entirely consistent either internally or with one another, with respect to dates upon which certain events occurred, and the circumstances of the proposal.

29. Furthermore, the parties’ claims as to how they met and married appear implausible. As well, the Tribunal has concerns regarding the speed with which the parties married, so soon after meeting. However, the Tribunal tested the parties about these matters, and they were consistent about them. They also gave a credible, consistent and measured response to the matters put to them pursuant to s.359AA of the Act. The Tribunal also observes that the parties have now been together for more than four years, and that as well as a large volume of documentary evidence supporting the relationship, it has heard evidence from Mr Davies, Mr Gordon and Mr Ryder all supporting the existence of a genuine relationship. All three of the witnesses appeared credible. Weighing up all the evidence, on balance the Tribunal concluded that the parties’ relationship is genuine, and has been ongoing for a lengthy period of time.

30. 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 the time of this decision.

31. Therefore the applicant meets cl.820.211(2)(a) and cl.820.221.

32. 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 820 visa.

    DECISION

33. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner (Temporary)) visa:

    ·cl.820.221(2)(a) of Schedule 2 to the Regulations

    ·cl.820.221 of Schedule 2 to the Regulations

    Fiona Meagher
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).