Ashrafzada (Migration)

[2021] AATA 653

Ashrafzada (Migration) [2021] AATA 653 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Masooma Ashrafzada

VISA APPLICANT:  Mr Ahmad Shoaib Asghari

CASE NUMBER:  1833296

DIBP REFERENCE(S):  BCC2017/3006898

MEMBER:Steven Griffiths

DATE:29 January 2021

PLACE OF DECISION:  Adelaide

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.309.211 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations; and

·r.2.03A

Statement made 29 January 2021 at 4.34pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married – de facto relationship – transfer of money from the female not culturally acceptable – shared responsibility for household while living together – considered plans for starting a family – family and social recognition of the relationship – decision under review remitted         

LEGISLATION

Domicile Act, 1982
Marriage Act, 1961
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; rr 1.09, 2.03

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 14 October 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, Mr. Ahmad Shoaid Asghari, applied for the visa on 7 August 2017 on the basis of his relationship with his sponsor, the review applicant, Ms. Masooma Ashrafzada. 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 because the relationship of the parties did not meet the definition of spouse, as defined in c.5F of the Act, or de facto, as defined in s.5CB of the Act, of the sponsor.  

4. The parties were represented by their registered migration agent, Mr. Besmellah Rezaee, of Beena Rezaee Legal & Migration.

5. The sponsor appeared before the Tribunal on 28 January 2021 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the applicant and Mr. Mohammad Ebrahim Ashrafzada, Ms Fatemeh Alizada, the parents of the sponsor.

6. The registered migration agent took part in the hearing.

7. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams Video and telephone, with the hearing held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by Microsoft Teams Video and telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Microsoft Teams Video and telephone. No concerns were raised by the parties on holding a Microsoft Teams Video and telephone hearing and the Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file, the Tribunal file including additional information provided by the applicants and the evidence from the Tribunal hearing.

   ISSUE

10. The issue in the present case is whether the applicant is 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 sponsor.

    BACKGOUND OF THE EVIDENCE

11. Mr. Asghari was born in Afghanistan in 1997. His parents, born 1967 & 1977,  and 3 brothers and a sister, born 2000 to 2012, are citizens of and have lived in Afghanistan until recently months when they moved to Pakistan for the medical treatment needs of the mother.  

12. Ms. Ashrafzada was born in Afghanistan in 1999. Her parents, born 1966 & 1970, and 4 brothers and 2 sisters, born 1986 to 2000, all live in Australia. She arrived in Australia on 2/12/14 and is an Australian Permanent Resident.

    BACKGROUND OF THE EVIDENCE

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

    Sponsor Passport and Travel documents

    Migration Agent submission, 20/1/21

    Sponsor Statutory Declaration, 18/1/21

    Marriage Registration Booklet with English translation

    Photo from Nikah Ceremony

    Receipts for jewellery purchased by the parties prior to wedding ceremonies, not translated

    Communication records 2017 to present, examples only and not full listing

    Photos of the parties at the wedding of the brother of the sponsor, in Iran

    Photos of party in Afghanistan December 2018 celebrating 2^nd wedding anniversary

    Photos of the parties with family and friends in Afghanistan and Iran

    Parties wedding invitation, not translated

    Photo from Henna party as part of 3 days of wedding events.

    Photos of parties wedding ceremony, December 2016

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

14. 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 applicant is the spouse or de facto partner of an Australian citizen or Australian Permanent Resident or an eligible New Zealand citizen. The Tribunal accepts the sponsor being an Australian Permanent Resident.       

    Whether the parties are in a spouse or de facto relationship

15. ‘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).

16. 'De facto partner' is defined in 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?

17. The Tribunal notes that at the time the visa application was made the provided evidence of being married in Herat City, Afghanistan on 15 December 2016.

18. The Tribunal notes the documented and oral evidence of the parties of the wedding celebrations held over 3 days held in late December 2016 involving approximately 200 people and including the parents of both parties. 

19. The Tribunal accepts that the marriage of the parties was supported by both their families, with an agreement being reach by all in December 2015 that the parties would marry and that culturally this is the strongest possible commitment that can be made and results in the parties being committed to the exclusion of all others.  

20. The Tribunal notes the provisions of the Marriage Act, 1961, of Australia recognises the marriage of parties in other countries when at least the age of 16 years, if the marriage was valid in the country it was solemnized, and neither party was domiciled in Australia at the time of the marriage.

21. The Tribunal notes the provisions of the Domicile Act, 1982, of Australia establishes the policy that intention to remain in a country indefinitely creates the domicile of choice, and determines that the sponsor, by having lived in Australia since 2014 with her family, and by sponsoring a Partner 309 Visa for the applicant to live in Australia, has chosen to and is domiciled in Australia.

22. From this, the Tribunal determines the parties are not validly married according to Australian law as defined by s.5F(2)(a) of the Act.

23. Given this, the Tribunal considered the relationship to determine if they meet de facto partner as detailed by s.5CB of the Act. 

    Are the parties in a de facto relationship?

24. As the visa applicant and sponsor 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).

25. 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

26. The Tribunal determines from the documented and oral evidence of the parties that at the time of the visa application and this decision the parties did not and do not have joint ownership of real estate or other major assets.

27. The Tribunal determines from the documented and oral evidence of the parties that at the time of the visa application and this decision the parties did not and do not have any joint liabilities.  

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

29. The Tribunal accepts the documented and oral evidence of the parties that the sponsor is a student studying childcare and does not work in a paid position, living with and supported by her parents.

30. The Tribunal accepts the documented and oral evidence of the parties that the applicant is a truck driver earning approximately $ 50 Australia per month, but has not worked for the last 6 months due to Taliban threats, living with his parents and supported by them since he was forced to stop working.

31. The Tribunal accepts the oral evidence of the parties that the transfer of money from the sponsor to the applicant is not culturally acceptable as it is the responsibility of the man to support the family, and that for this reason the sponsor has not sought to provide money to the applicant.

32. The Tribunal accepts the documented and oral evidence of the parties that at the time of the visa application and this decision the parties have not and do not have any pooling of financial resources in relation to major financial commitments, or the sharing of day-to-day household expenses, while placing little weight on this given the economic circumstances of each and the financial support each receives from their parents.  

    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

33. The Tribunal accepts the documented and oral evidence of the parties that while they considered conceiving a child while the sponsor was with the applicant in Afghanistan and Iran in late 2018, early 2019, the parties determined that would not seek to have children until they were living together in Australia  and their lives were settled.  

34. The Tribunal accepts the photographic, documented and oral evidence of the parties and witnesses of the parties and determines, at the time of application, the applicant is living with his family originally in Afghanistan and now Pakistan, with the sponsor living with her family in Australia.

35. The Tribunal accepts the photographic, documented and oral evidence of the parties and witnesses that the parties have lived together in Afghanistan from 15/12/16, the day of their Nikah wedding ceremony, to 4/2/17, approximately 51 days, and in Afghanistan and Iran from 20/12/18 to 22/4/19, approximately 123 days.

36. The Tribunal accepts the documented and oral evidence of the parties on the roles each undertakes in the household when they have lived together and determines, at the time of application and this decision, the parties have and do share the responsibility for housework when living in the same household. 

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

    (i)whether the persons represent themselves to other people as de-facto partners 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

37. The Tribunal accepts the photographic, documented and oral evidence of the parties that they consider themselves to be married, as they believe they married under the law and cultural requirements of Afghanistan, while determining that they do not meet the provisions of the Marriage Act, 1961, of Australia and their marriage in Afghanistan on 15/12/16 cannot recognised in Australia as the sponsor was 17 years and 9 months old at the time.

38. The Tribunal accepts the photographic, documented and oral evidence of the parties and hearing witnesses and determines at the time of application and this decision the parties represent themselves to other people at all times as being partners. 

39. The Tribunal accepts the documented and oral evidence of the parties that they have considered all options for being married in such a way as to meet the provisions of the Marriage Act, 1961 as for them and their religious and cultural beliefs de facto partners is not acceptable.  

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

41. The Tribunal accepts the documented, photographic and oral evidence of the parties of on the second trip by the sponsor to be with the applicant, in December 2018, they held a celebration involving family and friends in which all recognised that it was their 2 year anniversary of the marriage.

42. The Tribunal accepts the oral evidence of the parties of the strong sense of family that exists for the families of the sponsor and applicant and the high level of involvement the parties have with other family members.

43. The Tribunal accepts the photographic, documented and oral evidence, confirmed by the parties independently, and determines, at the time of application and this decision, the parties plan and undertake joint social activities when they have been together in Afghanistan and Iran.

    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.

44. The Tribunal accepts the documented and oral evidence of the parties initially being in contact with each other from early 2015, a closeness developing which prompted the parents of both to discuss an arranged married, which was agreed by the parents and applicant and sponsor, with the parties becoming engaged in December 2015.

45. The Tribunal accepts the photographic, documented and oral evidence of the parties and witnesses that the parties have lived together in Afghanistan from 15/12/16, the day of their Nikah wedding ceremony, to 4/2/17, approximately 51 days, and in Afghanistan and Iran from 20/12/18 to 22/4/19, approximately 123 days.

46. The Tribunal accepts the documented and oral evidence of the parties and the parents of the sponsor of the relationship, accepts that the applicant and sponsor are in contact with each other multiple times per day totalling approximately 2 hours per day, and determines at the time of application and this decision, that a high level of companionship and emotional support is provided by each of the parties to the other.

47. The Tribunal accepts the oral evidence of the parties and determines, at the time of application and this decision, they have had and continue to have an ongoing commitment to each other, see the relationship as being long-term and wish to have 4 children.

    Any other circumstances of the relationship

48. The Tribunal accepts the documented and oral evidence of the parties and hearing witnesses of the two families, being the applicants and sponsors, have been known to each other for many years, and while the applicant and sponsor developed the initial relationship by their own contact, all parties accept that from the date of acceptance of a marriage to happen, this being December 2015, the parties were in a committed relationship to the exclusion of all others that was binding upon the applicant, the sponsor and their parents.

49. The Tribunal notes the documented evidence of the parties of a Confession Letter (Wasika) signed by members of the Herat Statistics office in Afghanistan, considered to be a sworn affidavit and not an official marriage certificate, that the parties married on 15/12/16.  

50. The Tribunal notes documented evidence of the parties of a Marriage Certificate issued by the Islamic Republic of Afghanistan Supreme Court on 8/1/19 confirming the Marriage Contract of the applicant and sponsor on 15/12/16.

51. The Tribunal accepts the oral evidence of the parties and hearing witnesses that they have been extremely disappointed with the ruling that the marriage is not accepted under Australian law, when clearly according to their culture they are married, and that they have discussed holding another marriage ceremony when the applicant is able to live in Australia as they want no doubt to exist on the fact they are married and committed to each other.

52. The Tribunal notes the different interpretations of the parties relationship, with the parties firmly believing themselves as married, while the Tribunal, under the provisions of Australian law, does not accept the marriage in Afghanistan on 15/12/16 as being recognised by the provisions Marriage Act, 1961 and the relationship must be considered as a de facto relationship for this Partner Visa.

53. The Tribunal notes the oral evidence of the parties that the timing of the lodgement of the visa application, being nearly 8 months after their marriage, was due to financial pressures.

    Whether the parties are related by marriage

1. The Tribunal determines that the parties are not related by family. 

2. 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 as a couple to the exclusion of all others, with the relationship genuine and continuing and they have and continue to live together when together in Afghanistan, Iran or potentially Pakistan and will be living together as a family if the applicant is permitted to live in Australia.

3. 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. The Tribunal is further satisfied the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.

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

   Are the additional criteria for a de facto relationship met?

5. 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 sponsor was 18 years and 4 months and the applicant 20 years and 3 months.

6. The Tribunal accepts that the applicant turned 18 on 5 March 2017.

7. 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.

8. The Tribunal determines that the parties de facto relationship commenced from the time the parties accepted the marriage proposal, this being December 2015, when they committed to shared life to the exclusion of all others.

9. 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.

10. The Tribunal accepts the de facto relationship began in December 2015 and the visa application was lodged August 2017. Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12-month period ending immediately before the date of the application.

11. For these reasons the Tribunal is satisfied that the visa applicant meets the additional criteria prescribed in r.2.03A.

12. 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

13. 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.309.211 of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations; and

    ·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).