Aryani (Migration) - [2022] AATA 4906

Aryani (Migration) [2022] AATA 4906 (30 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Rani Aryani
VISA APPLICANT:  Mr Amirali Rashid
REPRESENTATIVE:  Mr Allan Hodder (MARN: 9250840)
CASE NUMBER:  2007450
DIBP REFERENCE(S):  BCC2019/152141
MEMBER:Maxina Martellotta
DATE:30 November 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309. (2) of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations

Statement made on 30 November 2022 at 8:43am
CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa – subclass 309 –sponsorship limitations – parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act– mutual commitment to a shared life to the exclusion of all others – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F,65
Migration Regulations 1994, r 1.15A, Schedule 2, cls 309.2,309.221
CASES
He v MIBP [2017] FCAFC 206
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 19 February 2020 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 23 January 2019 on the basis of his relationship with his 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.21, because they were not satisfied that the visa applicant was the spouse of the review applicant as defined in section 5F of the Act.
The review applicant appeared before the Tribunal on 22 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence by telephone from the visa applicant who is offshore, as well as oral evidence from a witness Ms Setiawati who appeared in person. The Tribunal also considered written submissions, statutory declarations, and other documents submitted to the Tribunal by the review applicant and the Department file. The review applicant provided the Tribunal with a copy of the delegate’s decision.
The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Whether the parties are in a spouse or de facto relationship
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 visa applicant claims to be the spouse of the review applicant who is an Australian permanent resident.
‘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 as well as their commitment to each other, which is 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 that must be answered.[1]
Background
[1] See He v MIBP [2017] FCAFC 206.
The review applicant was born in 1977 and is an Indonesian citizen and Australian permanent resident. She was previously married to an Australian citizen and has a dependent child (born 2008) from that relationship. The review applicant and her former husband are divorced. The visa applicant was born in 1972 and is a citizen of Pakistan. He and the review applicant claim that they first met through a social media platform in 2017 and were married in November 2018.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship but not a de facto relationship. At the hearing, the review applicant and visa applicant confirmed that they were married in November 2018. The marriage was conducted in Bandung Indonesia, in the presence of family and friends. The evidence is that the review applicant and visa applicant had a religious Muslim ceremony followed by a civil ceremony. The Tribunal was provided with a copy of the marriage certificate and marriage book, which was issued by the Republic of Indonesia. The Tribunal also notes from the delegate’s decision that the Department accepts that the review and visa applicant are validly married.
On the evidence, the Tribunal is satisfied and finds that the parties were married to each other under a marriage that is valid pursuant to s.5F(2)(a) of the Act.
Are the other requirements for a spouse relationship met?
Financial aspects of the relationship
The tribunal has had regard to the evidence provided, relating to the financial aspects of the relationship, including:
·      joint ownership of real estate or other major assets and any joint liabilities,
·     the extent of any pooling of financial resources, especially in relation to major financial commitments,
·     whether one person in the relationship owes any legal obligation in respect of the other,
·     and the basis of any sharing of the day-to-day household expenses.
The review applicant and the visa applicant provided the following evidence.
Joint ownership of real estate or other major assets.
They do not and have not owned any major joint assets.
They would like to purchase a home together. Given their circumstances with the visa applicant offshore, it has been difficult for them to jointly acquire any real estate or other major assets.
Joint liabilities
They have not and do not share any joint liabilities.
Pooling of financial resources and liabilities
Whilst they maintain separate banking accounts, after their marriage, they also opened a joint bank account. The review applicant and visa applicant are both employed. They each contribute to the joint account from time to time. They use the account mainly for any joint expenses that may arise but given that the visa applicant is offshore this is limited to various additional household expenses that the review applicant may have from time to time. They each send each other money by money transfer, when required by each other.
The Tribunal was provided with a copy of a joint bank statement, and evidence documenting money transfers.
Whether one person in the relationship owes any legal obligation in respect of the other
Apart from their marriage, neither person owes any legal obligation to the other.
Any sharing of the day-to-day household expenses.
As noted above, the review and visa applicant explained that the opportunity to share day-to-day household expenses has been limited due to their current circumstances. They do, however, share funds from time to time, when one of them requires or requests money.
During periods when they have spent extended time visiting each other, they have jointly met day-to-day expenses.
Nature of the household
The Tribunal has had regard to the evidence as to the nature of the household including joint responsibility for the care and support of children, the parties’ living arrangements, and any sharing of the responsibility for housework.
Joint responsibility for the care and support of children
The review applicant has a dependent child from her previous marriage who lives with her. She stated that whilst there is no formal responsibility for the visa applicant to provide care and support of the child, he has spent time with her son, and they have developed a good relationship.
When the visa applicant stayed with her in Australia after their marriage, he provided care and supervision of the child when she was at work. This included picking him up from school, and generally spending time and playing with the child. The visa applicant stated that as a stepfather, he has responsibility for the child’s care and support. He has a positive relationship with the child.
The review applicant included materials in her submission of correspondence between her child and the visa applicant, demonstrating a positive relationship between them.
Living arrangements and housework
Evidence in this regard is limited to periods when the review applicant and visa applicant have spent time with each other following their marriage. These periods include time the review applicant has visited the visa applicant in Pakistan in 2019, 2020, 2022, and occasions the visa applicant has visited the review applicant in Australia in 2019; the 2019 visit was initially for a month and the applicant returned later in the year for three months. The review applicant explained that their ability to visit each other was impacted by travel restrictions, due to the COVID-19 pandemic. However, once those limitations were lifted, she travelled back to Pakistan. The visa applicant said he was not able to get a visitor visa in more recent times and this has impacted on his ability to travel to Australia.
When he was in Australia, the review applicant and visa applicant lived together in her rental property. They shared a bedroom and jointly managed the household tasks. Consistent evidence was provided regarding the division of tasks including shopping, cooking, cleaning and household maintenance.
The review applicant has also spent time visiting the visa applicant in Pakistan. On those occasions, she stayed with him in the family home where he lives with his parents and extended family. She said that any day-to-day sharing of household tasks need to be considered in the context of this living arrangement, but she would help with the cooking and some of the household tasks.
Their long-term intention is to live together as a single household with the review applicant’s child.
Social Aspects of the relationship
The tribunal has had regard to the evidence provided, namely: whether the parties represented themselves to others as being married to each other, the opinion of their friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake joint social activities.
Representation to others
After meeting initially on social media, the visa applicant and review applicant stated that they communicated frequently developing a rapport and agreed to meet in Kuala Lumpur where the review applicant was working at the time.
Leading up to and following their first meeting, the review applicant and visa applicant stated that they told family and friends that they had met someone whom they were interested in. Following their initial meeting, they confirmed that they both felt a strong attraction to each other and wanted to pursue their relationship to the point of committing to marriage. They spoke to their respective families and parents, who provided their approval.
They decided to get married in Indonesia, in the review applicant’s hometown. The wedding was mainly attended by her family and friends. The visa applicant’s brother attended the wedding and his parents witnessed the wedding by video.
Leading up to and since their marriage in November 2018, family, friends, and their community recognised them as being in a committed genuine spousal relationship. The Tribunal was provided with statutory declarations, provided by family members and friends, which attested to the recognition of the relationship between the review applicant and visa applicant. This was further confirmed in the oral evidence of a witnesses at hearing, who stated that she became aware of the visa applicant and his relationship with her friend (the visa applicant) from conversations she had with the review applicant and has since met the visa applicant on his visits to Australia after the marriage.
Opinion of their friends and acquaintances about the nature of the relationship
As noted, the Tribunal received a number of statutory declarations from friends and acquaintances who attested to the genuine nature of the relationship between the review applicant and visa applicant. Also in support, the Tribunal reviewed statutory declarations and statements provided by family members that attested to having met either the review applicant or visa applicant in the context of their relationship. These friends and acquaintances stated the opinion that the review applicant and visa applicant presented as a couple who are in a genuine and committed relationship.
Any basis on which the parties plan and undertake joint social activities.
The review applicant and visa applicant were able to provide consistent accounts of the activities that they both enjoyed undertaking, especially during the periods that they have spent together in Pakistan and Australia.
As noted, the visa applicant and review applicant have also met and spent time with each other’s family in Pakistan and Indonesia. The visa applicant described social activities that he and the review applicant undertook when visiting each other, which included sightseeing, spending time with each other, as well as with family and friends.
The Tribunal was provided with photographs that showed the review applicant and the visa applicant with members of each other’s family in addition to photographs from their wedding.
Nature of the persons’ commitment to each other
Duration of the relationship and length of time they have lived together
The Tribunal has had regard to the evidence provided in relation to the nature of the parties’ 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.
The review applicant and visa applicant provided consistent evidence about how their first met through Facebook in late 2017 and how the relationship developed from that point to physically meeting in 2018. In response to questions about the period between meeting and getting married, the oral evidence provided at hearing was that they were both at a point in their lives when they recognised a mutual attraction and compatibility, which led them to deciding to marry and commit to a life as spouses. The visa applicant further explained that they spent so much time communicating and video calling each other before physically meeting that they had already established a strong connection and feeling for each other – their first meeting simply confirmed this for them.
Since marriage, they have maintained their relationship and connection through visits to each other’s country as well as daily contact by phone through messaging and video calls. The Tribunal was provided with evidence that demonstrates the regular contact maintained between the review applicant and visa applicant.
Emotional support they draw from each other
The review applicant and visa applicant spoke about how they supported each other through difficult times, particularly arising from the visa refusal. They both spoke about the love and support they have for each other as well as the firm commitment to be together, whether it is in Australia, Pakistan, or Indonesia. Their preference, however, is to live together with the review applicant’s child in Australia. The review applicant explained that her son is an Australian citizen who has grown up in this country. She has employment in the aged care sector, and it would be easier for all concerned to live in Australia. However, if this is not possible then they will explore other options.
The visa applicant told the Tribunal that his main priority is that he and his wife can live and be together as a family. He understands that the review applicant has particular ties to Australia, especially due to her child being born and raised here. He wants to support her and to be with her and, if not in Australia, then they will need to explore other options.
The distance has made it difficult, but they have maintained a strong connection and they communicate with each other on a daily basis. Extracts of these messages demonstrate the review applicant and visa applicant providing each other with emotional support.
Whether they see the relationship as long-term
The review applicant and visa applicant each independently spoke of their future plans. They want to buy their own home and to have a child together, if so blessed. They both said that they will not stop trying if the visa application is refused. The experience of their separation has made them even more determined to be together in the long term.
Are the criteria for a defacto relationship the time of application and are the criteria for a spousal relationship at the time of decision been met?
In this matter, the tribunal makes the following findings of fact:
Financial aspects of the relationship
The review applicant and visa applicant:
a)   Do not jointly own any significant assets.
b)   Maintain separate bank accounts as well as a joint bank account.
c)   Do not service any joint liabilities.
d)   Provide each other with financial resources from time to time.
e)   Pool some of their resources in a joint account but this is limited to occasional deposits and withdrawals as and when required.
Nature of the household
The review applicant and visa applicant:
f)    Have lived together for periods of up to three months after their marriage, in the context of visits to each other’s country. In particular, during the three-month period that the visa applicant was in Australia, they lived together in the review applicant’s rental home where they operated as a single household.
g)   When living together, they shared all the amenities of the property and each contributed to the household tasks such as cleaning, cooking and shopping and childcare.
h)   They have otherwise, due to their circumstances and not by choice, resided in different countries.
Social Aspects of the relationship
i)    The review applicant and visa applicant have represented themselves as spouses to family, friends, and third parties.
j)    Family and friends have expressed the opinion that the visa applicant and review applicant are in a genuine spousal relationship, which is evidenced by statutory declarations, statements provided in support, and the oral evidence of a witness provided at the hearing.
k)   The review applicant and visa applicant have planned and undertaken social activities as members of a couple; to date, this has mainly occurred on those occasions when they are visiting each other.
The nature of their commitment to each other
The review applicant and visa applicant:
l)    Met online in November 2017.
m) Physically met in February 2018 and were married in November 2018.
n)   Have provided companionship and emotional support to each other since recognising their personal relationship in early 2018 and, in particular, during periods of physical separation.
o)   Describe their relationship as long-term and see their future as living together, buying a home together, and having a child together.
Other finds of fact
p)   The review applicant and visa applicant are not related by family and are both over the age of 18 years.

Having had the opportunity of observing and testing the review applicant and visa applicant’s evidence at hearing in addition to the oral evidence provided by the witness, taking into account the materials and documents before the tribunal as well as its findings of fact, the tribunal is satisfied that the evidence supports the conclusion that the review applicant and the visa applicant have a mutual commitment to a shared life to the exclusion of all others and that it is a genuine and continuing relationship. [2]
[2] While the prescribed matters must be considered in Partner visa cases, they are not criteria that must each be satisfied - Li v MIAC [2007] FMCA 454 at [73]. The Court stated the Tribunal decision would have involved jurisdictional error ‘if the Tribunal had taken the view that, to meet the criteria, the applicant must have pooled her financial affairs with the sponsor’s…’. Decision upheld on appeal in Li V MIAC [2007] FCA 1098.
In this matter, whilst there is no joint ownership of major assets or liabilities and there is a limited pooling of finances, this needs to be seen in the context of the circumstances of this case. The evidence, in relation to the social aspects of the relationship and the nature of the commitment, depicts a committed relationship that has endured the challenges that have arisen from their physical separation. Despite this, the review applicant and visa applicant have maintained their commitment to a shared life and their evidence was well-supported by statements provided by family and friends. In this matter, taking into account all the relevant circumstances and evidence, the tribunal is satisfied that the requirements are met.
The tribunal is also satisfied that, since their marriage, the review applicant and visa applicant have lived together and not separately or apart on a permanent basis. In reaching this conclusion, the tribunal notes that the parties have obviously not been able to reside in the same country; however, the evidence supports a conclusion that this is not a permanent arrangement and there is evidence that this arrangement is mutually viewed as temporary.
For these reasons, the Tribunal is satisfied and finds that:
a)The review applicant and the visa applicant 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.
b)At the time of the visa application, the review applicant who is an Australian permanent resident was the spouse of the visa applicant.
c)At the time of decision, the review applicant and the visa applicant continue to meet the definition of ‘spouse’.
On the basis of the above, the Tribunal is satisfied that the requirements of s.5F are met at the time the visa application was made and at the time of this decision.
Therefore, the visa applicant meets cl.309.211(2) and cl.309.221.
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.
decision
The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309. (2) of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations
Maxina Martellotta
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).