Awan (Migration)

[2023] AATA 553

Awan (Migration) [2023] AATA 553 (31 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Usman Nisar Awan

VISA APPLICANT:  Mrs Hira Usman

REPRESENTATIVE:  Mrs Ashwinder Kaur Sawhney (MARN: 1277854)

CASE NUMBER:  2006882

DIBP REFERENCE(S):  BCC2018/4858499 BCC20184858499

MEMBER:Moira Brophy

DATE:31 January 2023

PLACE OF DECISION:  Sydney

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.

Statement made on 31 January 2023 at 12:02pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – parties have a young child together – evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act– parties are committed to one another –extended periods of cohabitation since 2017 –  decision under review remitted   

LEGISLATION
Migration Act 1958, ss 5F,65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 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).

2. The visa applicant applied for the visa on 3 November 2018 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 309.311 and cl 309.321 because the delegate was not satisfied the visa applicant met the definition of spouse as outlined in reg 1.15A in that the parties were not in an ongoing and committed relationship.

4. The review applicant and the visa applicant appeared before the Tribunal on 30 January 2023 by way of a video link to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and the English language

5. The review applicant was represented in relation to the review.

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

   Background

7. The review applicant is a 38-year-old male who was born in Pakistan. He was previously married to Tanja Jelka Awan in the period from 5 April 2010 to 1 March 2015. He was sponsored to Australia on a Partner visa by his previous spouse. He arrived in Australia on 7 February 2007 and became an Australian citizen on 13 May 2014. His parents and older brother live in Pakistan, and he has one sister and one brother living in Australia.

8. The visa applicant is a 23-year-old female who was born in Pakistan. Her parents, two brothers and two sisters are living in Pakistan, and she has one brother living in Canada.

9. At the time of application, the parties stated they met on 21 December 2016, and they committed to each other to the exclusion of all others on 21 July 2017 being the day they married. They were introduced to each other by their parents for the purpose of entering a traditionally arranged marriage. There is one child of the marriage, a daughter born on 4 November 2020, and they are presently awaiting the birth of their second child.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the parties were in a genuine and continuing spousal relationship at the time of application, and whether they continue to be in that relationship at the time of decision.

    Tribunal proceedings

11. In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files and oral evidence provided by the visa applicant and review applicant at the hearing.

12. The parties gave coherent oral evidence about the circumstances in which they met, the development of their relationship and their current living arrangements. The Tribunal found them to be credible and was satisfied it could rely on their evidence in making findings of fact.

    Whether the parties are in a spouse or de facto relationship

13. 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 citizen.

14. ‘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 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?

15. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. There is nothing in the information before the Tribunal to cast doubt on the validity of the parties’ marriage on 21 July 2017 and the Tribunal accepts it is a valid marriage. Consequently, in the absence of any evidence to the contrary, the Tribunal finds that the parties are married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

    Financial

16. The review applicant and the visa applicant are currently living together in Pakistan. They are living with the family of the review applicant. They are not required to pay for rent or the cost of utilities. Neither the review applicant nor the visa applicant is currently employed. They support themselves from savings the review applicant had from his last paid employment in Australia. Prior to the review applicant returning to Pakistan, he was employed in Australia, and he sent money on a regular basis to the visa applicant meet her personal needs.

17. The parties have a joint bank account in Pakistan, but it is used primarily for the transfer of monies.

18. Both parties demonstrated a reasonable knowledge of each other’s finances. The Tribunal appreciates that it is presently difficult to provide evidence of shared finances.

    Nature of the household

19. The Tribunal accepts that since their marriage in July 2017, the review applicant and the visa applicant have lived together for over four years. The Tribunal accepts the parties have stayed together as a couple in those periods.

20. The parties gave consistent evidence that in the periods they have lived together, the family of the review applicant employs outside help, and they largely manage the household chores. The visa applicant assists the mother of the review applicant with the cooking. The review applicant, the visa applicant and the mother of the review applicant do the shopping together and the review applicant or his mother would generally pay.

21. Both the visa applicant and the review applicant are actively involved in the care of their young daughter. The review applicant cares for the visa applicant as they await the birth of their child expected in April 2023.

22. The parties gave consistent evidence about their plans to establish a joint household in Sydney and to live as a family with their children. The Tribunal places significant weight on this aspect of the relationship given the extended periods of cohabitation since 2017.

    Social aspects of the relationship

23. The review applicant provided statutory declarations in support from members of their respective families to the Department, and further statements attesting to the genuine nature of the relationship were provided to the Tribunal.

24. The Tribunal accepts from the photographic evidence, the supporting documentation as outlined above, and their oral testimony at hearing, that the parties have as a couple spent time with each other’s families. Their relationship as a married couple is known and accepted within their community.

25. The Tribunal accepts on the evidence before it that the parties present to their family and friends as a married couple.

    Nature of the persons’ commitment to each other

26. Given the concerns previously raised by the delegate, the Tribunal carefully considered the evidence as to the nature of the commitment of both parties to the relationship.

27. The Tribunal accepts the parties have been in a committed relationship since 2017 and they share one child with another expected soon. The Tribunal further accepts their shared religious and cultural beliefs are major factors in their perception of their relationship as being a lifetime commitment.

28. The Tribunal accepts their primary commitment is to their relationship with each other and that while a visa was a part of the equation, their commitment was not dependent on the visa being granted.

29. Based on all the evidence, the Tribunal finds the parties have a commitment to each other consistent with them being in a spousal relationship. There was no doubting their commitment to each other and to their family. 

30. Given the above findings, the Tribunal is satisfied that at the time the visa application was lodged and at the time of this decision, the parties are validly married, have 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. The Tribunal finds that they intend to live together in Australia and that they therefore do not live separately and apart on a permanent basis.

31. Accordingly, the Tribunal finds that the applicant satisfies the definition of ‘spouse’ in s 5F (2) (a)-(d), and that the parties were in a spousal relationship.

32. The review applicant is an Australian citizen.

33. Given these findings, the Tribunal is satisfied that at the time the visa application was made, and at the time of this decision, the parties were in a spousal relationship. The Tribunal finds that the visa applicant is the spouse of the review applicant and satisfies cl 309.211(2) and therefore cl 309.211. The Tribunal finds that at the time of decision, the visa applicant continues to satisfy cl 309.211.

34. Therefore, the visa applicant satisfies both cl 309.211 and cl 309.221.

35. 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

36. 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.

    Moira Brophy
    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).