Asim (Migration)

[2020] AATA 2598

Asim (Migration) [2020] AATA 2598 (22 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Najib Asim

VISA APPLICANT:  Mrs Aziza Nadir Ali

CASE NUMBER:  1700781

DIBP REFERENCE(S):  BCC2015/3159750

MEMBER:Helen Kroger

DATE:22 June 2020

PLACE OF DECISION:  Melbourne

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(2) of Schedule 2 to the Regulations

Statement made on 22 June 2020 at 1:40pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – spouse – genuine and continuing relationship – arranged marriage – validly married in home country – financial, household and social aspects of relationship – sponsor’s financial support of applicant’s parents – nature of commitment – delay in applying for visa – communication and visits – relocation to a third country for safety – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65

Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cl 309.211

CASE

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 December 2016 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 applied for the visa on 28 October 2015 on the basis of her relationship with her 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) of Schedule 2 of the Regulations because he/she did not believe the parties were in a genuine and continuing relationship.

4. The applicant seeks review of the delegate’s decision and for that purpose provided a copy of the primary decision to it.

5. The review applicant appeared before the Tribunal on 26 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Ms Aziza Ali and two witnesses, Sayeed Adelie and Zalmay Mehrzad.  

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. The Tribunal was conducted with the assisted of an Interpreter proficient in Dari and English language.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the parties are in a genuine and continuing relationship at the time of application.

   Whether the parties are in a spouse or de facto relationship

9. Clause 309.211(2) requires that at the time the visa application was made, 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.

10. ‘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?

11. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties claim to have been married in Kabul on 17 October 2013 in Kabul, in a traditional nikkah ceremony held at the home of the visa applicant’s parents. The Tribunal has considered a certified and signed copy of a Marriage Certificate, issued in the Islamic Republic of Afghanistan, indicating a marriage on the 17 October 2013 and the issue date of the certificate on 20 May 2014. There is no information before the Tribunal to indicate that this is not a genuine and valid document. 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?

12. The Tribunal must consider all the circumstances of the relationship (including the matters specified in r.1.15A) in determining whether the parties are in a “married relationship” as defined by s.5F(2). These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the person’s commitment to each other.

13. Both parties provided oral evidence at the hearing to support their claim along with documentation submitted prior to the hearing and evidence previously submitted to the Department to support the visa application.  Submissions were received by the Tribunal after the hearing including further documentation regarding the inconsistent evidence provided by the parties during the hearing in relation to the visa applicant’s age. The Tribunal has given careful consideration to all the material before it including the evidence in relation to the various evidence submitted by the parties at hearing.

    The Financial Aspects of the Relationship

14. The Tribunal must consider all the financial aspects of the relationship including any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources (especially in relation to major financial commitments); whether either person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day to day household expenses.

15. The review applicant explained the copies of the numerous money transfers that he provided to the Department and the Tribunal for review. Mr Asim  told the Tribunal that he supports the visa applicant and extended this financial support to her parents in 2017 when he moved them to Iran to live with one of Ms Ali’s sisters and family. He submitted that he was particularly concerned about her safety in Kabul with outbreaks of violence and incidents of suicide bombing and asked her parents to take her to her sister who lived in Iran with her family. Mr Asim transfers money to Ms Ali’s brother-in-law, to cover the cost of living and supports his wife and parents-in-law. Evidence before the Tribunal indicates that the applicant has provided financial support to Ms Ali since their traditional marriage in 2013 and has subsequently increased this support by extending it to her parents when they chaperoned her to Iran. The Tribunal has considered the period of time during which Mr Asim has provided financial support and his commitment to providing monthly financial support to her and her parents since they moved to Iran, as they are not able to work in that country, and support themselves. Evidence before the Tribunal indicates that the review applicant has made a substantial financial commitment for a period of 7 years and finds that this financial support indicates significant ongoing commitment to the relationship and accordingly places significant weight on this factor.

16. Mr Asim indicated that whilst he has relatively modest financial means, he has focused on securing a rental property with the relevant household goods and furniture in preparation for them as a couple, subject to the visa application review.

17. The Tribunal has given careful consideration to all the material before it but with particular regard to the review applicant’s arrangements over a relatively long period of time and gives significant weight to the financial aspects of the relationship.

    The Nature of the Household

18. In assessing the nature of the household, the Tribunal gives weight to evidence of joint responsibility or shared responsibility for housework and chores, for the care and support of any children (where relevant), and the living arrangements of the parties.

19. The parties engaged in an arranged marriage in 2013, with the sponsor meeting the applicant one week before the ceremony. Whilst the sponsor has subsequently visited the applicant, they live in separate countries and accordingly live in different countries.

20. As such, the Tribunal finds that it is not possible for them to share aspects in relation to the nature of the household and accordingly places no weight on this aspect.

    The Social Aspects of the Relationship

21. In assessing the social aspects of a relationship, the Tribunal must have regard to all the social circumstances of the relationship including whether the parties represent themselves as a couple to other people as being married to each other; the opinion of the parties’ friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities.

22. The parties marriage was arranged by their respective parents, and the Tribunal was told that the arrangement was made some 20 years ago between the families. Both families came from the same area in Afghanistan and the sponsor’s parents moved to Australia in 2005 with the family. The sponsor indicated that his father first spoke to him about the arrangement when he was around 22 or 23 years of age. The sponsor travelled to Kabul in 2013 for two weeks for a potential marriage and explained that he visited and met with the applicant and her parents one week before the ceremony to see whether they liked each other. The ceremony took place in the applicant’s family home and was attended by around 20 family members and friends that were connected to the visa applicant. The sponsor did not have any family members travel with him and one of his friends from Australia, who was in Kabul at the time, attended the wedding.  This friend appeared before the Tribunal at the hearing, and gave oral evidence about the marriage ceremony and indicated that he believed the parties were in a genuine relationship.

23. Various photos were submitted to the Tribunal  that show the parties with family members or friends connected to the applicant. The Tribunal has reviewed these in view of the conservative culture in which the applicant lives, and finds that the photos indicate that the parties are in a relationship.

24. There is no information before the Tribunal to indicate that the family and friends of the parties did not consider the parties to be married and that they participated in their lives on the basis that they represented themselves as a married couple.

25. In view of the above, the Tribunal is satisfied that there is public recognition of the parties’ relationship at the time the visa application was made and gives some weight to the social aspects of the relationship.

    The Nature of the Person’s Commitment to each other

26. In assessing commitment to each other, the Tribunal must have regard to the duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the persons see the relationship as a long term one.

27. The parties claim that they first met in 2013, one week before their arranged marriage in Kabul, that took place on 17 October 2013. The sponsor returned to Australia one week later and the visa application was lodged nearly two years later. The parties claim that the delay in lodging the visa application was due to the need to secure various documentation that his brother-in-law assisted with. He explained the difficulties and time delays he experienced in getting the marriage certificate certified in Afghanistan. The sponsor has visited the applicant three times since their marriage, staying for a period of up to 3 months with Ms Ali in her sister’s house.

28. The sponsor sends the equivalent of AUD$200 each month to the applicant’s brother-in-law, to support his wife and defray costs for his parents-in-law. The applicant told the Tribunal that she is un-educated, and that she and the sponsor communicate via whatsapp daily, providing copies of various exchanges to each other to the Tribunal.

29. The sponsor submitted to the Tribunal that he moved the applicant to Iran, under the supervision of her parents in 2017, in an endeavour to ensure her safekeeping as he was concerned about the prevalence of violence in Kabul. The Tribunal attaches significant weight to this aspect as it finds that making such a decision by supporting a relocation for Ms Ali to a third country, is an indication of a genuine and continuing commitment to each other to the exclusion of all others. In her evidence the applicant indicated that she has been sewing clothes in preparation for a move to Australia, as she is unable to work, and continues to live a relatively conservative way in her sister’s home, consistent with the local culture.

30. The parties indicated during the hearing that they remain in daily contact which allows them to maintain an interest and engagement in what each other are doing whilst providing emotional support.

31. The Tribunal has considered the nature of the relationship and finds that the parties are in a genuine and continuing relationship at the time of the application and that they demonstrated a level of commitment to each other.

32. In view of all of the above, the Tribunal is satisfied that there is public recognition of the parties’ relationship. The Tribunal is satisfied by the parties’ oral evidence at the hearing that they demonstrate a sound knowledge of each other’s lives which is commensurate with a couple in a genuine and on-going spousal relationship. In respect of whether there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, the Tribunal accepts the oral evidence as presented at the hearing.

    FINDINGS

33. The Tribunal is satisfied that the parties’ marriage is valid for the purposes of the Act as required by s.5F(2)(a).

34. The Tribunal is satisfied that at the time of application the review applicant and the applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

35. The Tribunal is also satisfied that at the time of application the parties meet the requirement of s.5F(2)(d) for a married relationship, in that they do not live separately and apart on a permanent basis.

36. For these reasons the Tribunal is satisfied that at the time the visa application was made that the parties were in a married relationship within the meaning of s.5F(2) of the Act. Accordingly, at the time of the visa application, the applicant wa the spouse, within the meaning of s.5F of the review applicant, who is an Australian citizen, and meets the requirements of cl.309.211(2) of Schedule 2 to the Regulations. Therefore, cl.309.211 is met.

    DECISION

37. Given the above, the Tribunal remits the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa. 

    Helen Kroger
    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).