AYIRCUM (Migration)

[2024] AATA 2076

AYIRCUM (Migration) [2024] AATA 2076 (1 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Agok Malual AYIRCUM

VISA APPLICANT:  Mr Mohammad Din Islam CHOWDHURY

REPRESENTATIVE:  Dr Nathan Stephen WILLIS (MARN: 1467692)

CASE NUMBER:  1931436

DIBP REFERENCE(S):  BCC2017/2379858

MEMBER:Jennifer Cripps Watts

DATE:1 May 2024

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

·cl 309.221 of Schedule 2 to the Regulations

Statement made on 1 May 2024 at 4:57pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – limited documentary evidence provided with visa application and concerns about purpose of relationship – validly married – financial, household and social aspects of relationship and nature of commitment – length of relationship – care for sponsor’s adult child with developmental condition – spontaneous and cogent evidence and genuine and credible interactions – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

CASES
He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Home Affairs (‘the delegate’) on 22 October 2019 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 (‘the applicant’) applied for the visa on 4 July 2017 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.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 309.211 and 309.221 because the delegate was not satisfied the applicant and sponsor (‘the parties’) were in a genuine and continuing married relationship.

4. The parties appeared before the Tribunal in person on 7 December 2023 to give evidence and present arguments.  The review applicant’s adult daughter also attended the hearing but did not give oral evidence.  Two interpreters appeared at the hearing and assisted the parties and the Tribunal in the Dinka, Bengali and English languages.   

5. The parties’ representative, Dr Willis, and his colleague attended the Tribunal hearing.

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 parties were in a genuine married relationship at the time of application and continue to be a married relationship at the time of the Tribunal’s decision to meet cl 309.211 and cl 309.221 of Schedule 2 to the Regulations. The Tribunal is reviewing the same substantive issue on which the visa was refused, that is, whether the parties are spouses in a ‘married relationship as it is described in s 5F of the Act.

   Whether the parties are in a spouse or de facto relationship

8. 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. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant 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 visa applicant’s and review applicant’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in Attachment 2 to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP[2017] FCAFC 206.

   Background

10. The applicant and sponsor are mature people who have each had previous relationships and children. 

11. The parties met through a mutual friend, Adam, in May 2016 and have lived together at the same address in Coffs Harbour since July 2016.   

12. The applicant and sponsor attended the hearing in person at the Sydney Registry of the Tribunal with the sponsor’s adult daughter.  The applicant is divorced and has two sons, born in 2009 and 2011, who live with their mother and grandmother in Bangladesh.

13. The parties have provided a written submission from Dr Willis, together with a substantial bundle of documentary evidence in support of the application addressing the matters in reg 1.15A(3), see Attachment 1 of this decision. 

14. The Tribunal carefully considered the documentary evidence prior to the hearing and took time to have detailed and inquisitive discussion with the applicant and sponsor at the hearing.  However, no amount of documentary evidence addressing the matters in reg 1.15A(3) can outweigh the lasting impression that the Tribunal has been left with from the way this family of three who live together interact with and speak of one another.  They are communicative with one another in a relaxed and familiar way that strongly indicates that the parties are in a genuine and long term relationship and that they are both committed to, and do, share in the care of the sponsor’s daughter.

    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. The parties married each other on 15 October 2016 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?

16. The Tribunal has considered documentary evidence on both the Tribunal and Department files, together with the oral evidence given at the Tribunal, and any other relevant matters in making a decision on review.

17. The applicant provided only a limited amount of documentary evidence in support of the visa application made in July 2017.  This, together, with the applicant’s visa history, raised and amplified concerns that are set out in the primary decision record, that the applicant may have entered into the relationship for the primary or even sole purpose of pursuing permanent residency in Australia. 

18. In summary, relating to the applicant’s visa history, he arrived in Australia in December 2014 and [Redacted] in October 2016 the applicant and sponsor married each other and lodged a subclass 820 partner visa application.  It was refused on 19 May 2017 because the applicant did not hold a substantive visa at the time of the application and did not meet the Schedule 3 criteria.  In July 2017, the parties travelled together to Fiji with their mutual friend, Adam.  The sponsor stayed for a couple of days and then returned to Australia.  The applicant and Adam stayed on a bit longer so the applicant could lodge the subclass 309 partner visa application that is the subject of this review.  At the Tribunal, the applicant said he was aware that he did not meet the Schedule 3 criteria when he made the previous partner visa application, so he went offshore to make the application this time.

    Financial aspects of the relationship;  reg 1.15A(3)(a)

19. The Tribunal has had regard to evidence in support of the way the parties manage their finances as a couple, including any joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

20. The parties have two joint bank accounts.  The sponsor is a registered carer for her daughter and receives a carer payment of about $1,000 a fortnight from the government which is credited to the sponsor’s Commonwealth Bank account; she then transfers some of it to a joint Westpac account.  They also have an NAB joint account.  The parties both gave evidence that they put money into the joint accounts and use the accounts for household expenses and shopping. 

21. It has been submitted that the bank accounts ‘have been operated with reasonable frequency and for a reasonable period of time’.  On examination of bank statements that have been provided to the Tribunal, it is accepted that this is the case.  The parties have provided their wills, their residential tenancy agreement and ledger statements and verifiable evidence of their residential address.

22. The Tribunal is satisfied that the parties pool and share their resources, and that they future financial plans, which they have discussed with each other.  They plan to buy a house and then open a restaurant business together indicating that they see the relationship, in addition to the six or so years that they have been married, as being long term and one where they plan to continue to share and pool their finances.

    Nature of the household:  reg 1.15(3)(b)

23. The Tribunal has had regard to evidence provided by the parties relating to the nature of their shared household, including any joint responsibility for care and support of children; the parties' living arrangements; and any sharing of housework.

24. The parties and the sponsor’s daughter live in a three bedroom rented house; the applicant and sponsor since 2016; and with the sponsor’s daughter since 2018.

25. The parties each gave oral evidence at the hearing demonstrating that they know quite a bit about each other’s families overseas.  They both gave evidence that if the applicant’s visa is granted they would like his two boys, born in 2009 and 2011, to come to Australia to go to school here.  The applicant sends money to his children in Bangladesh, which the sponsor is aware and supportive of.  The sponsor’s daughter is a NDIS participant and has carers and support workers who come in five days a week; she also goes to TAFE and swimming lessons.  While she is in their care, the sponsor works outside the home in homecare herself.  The applicant works 5-7 days a week at a local company called Costa.

26. The parties share duties in their household.  The applicant does the majority of the cooking, as they both believe he is the better cook and he enjoys it, and the sponsor does most of the housework or cleaning.  The sponsor’s daughter also does some light cleaning and tidying up around the house.

27. The parties have lived in the same house since 2016.  In 2018, the sponsor’s adult daughter, who is autistic and non-verbal came to live with them.  The sponsor gave evidence at the hearing that her daughter is very fond of the applicant.  He brings her little treats when he gets home from work, such as fruit or ice-cream, and the sponsor said she is always excited to see the applicant when he gets home.

28. The Tribunal is satisfied that the parties share joint responsibility for care and support of their respective children, that they share duties around the house and that their living arrangements are what might be considered usual of a genuinely married couple, including their future plans.

    Social aspects of the relationship:  reg 1.15(3)(c)

29. The Tribunal has had regard to the social aspects of the parties relationship, including whether they represent themselves to other people as being married to each other; the opinions of friends and acquaintances about the nature of the relationship; and any basis on which the applicant and sponsor plan and undertake joint social activities.

30. The parties were asked at the Tribunal hearing if they go out together as a family and said that they go to McDonalds and to the park with the sponsor’s daughter.  T The applicant and sponsor held what they described as a wedding party at their home in Coffs Harbour for about 15 of their friends.  They have provided statutory declarations from a number of their friends in support of the relationship being a genuine and continuing marriage on the basis of the declarants’ first hand opinions.  A number of photographs of the parties together and socialising with others have been provided, including with some of the people who gave statutory declarations in support of the relationship, in both 2019 and more recently in 2023.

31. The applicant’s doctor has provided a letter stating that the applicant has presented as his patient to be married to the sponsor.  The sponsor’s doctor has provided a letter to the same effect relating to her marital status.  The parties have also declared their spouse to various organisations and government agencies.

32. The Tribunal is satisfied that the parties represent themselves as a genuinely married couple and that the opinions of their friends and families support this to be the nature of the relationship.

    Nature of the parties’ commitment to each other:  reg 1.15(3)(d)

33. The Tribunal has had regard to the manner in which the parties demonstrate their commitment to each other, 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.

34. The parties’ personal statements each reflect that they share their finances and household and that the relationship is declared in the community and to family and friends as a genuine and long term marriage.

35. The parties have been married to each other and cohabiting for nearly seven years.  They have demonstrated to the satisfiaction of the Tribunal that they provide each other with genuine companionship and emotional support, and that the relationship, already a long term one, is one the parties see as continuing in the longer term.

    Any other circumstances of the relationship

36. Before concluding the hearing, the applicant was asked if he wished to add anything.  He said:

    ‘I want to stay with my wife, I have not had a single day where I’ve had an argument with her, she is such a good hearted lady, she waits for me to eat our dinner.  I will stay with her until I die.  Now if I have a visa, we can buy a house.  We love each other and we care for each other.’

37. The Tribunal had the opportunity at the hearing to speak to each of the parties in person, and observe them interact with each other and the sponsor’s daughter.  While some residual concern exists as to the applicant’s motive for entering into the relationship when the application was made, it appears that this couple have settled into a very comfortable married life together, consistent with what might be considered usual for someone in their circumstances.  They gave spontaneous and cogent evidence and presented as very credible.

38. Having asked and answered each of the reg 1.15A(3) matters in the affirmative, the Tribunal finds that the parties have a mutual commitment to a shared life to the exclusion of others; their relationship is genuine and continuing; and that they live together or not separately and apart on a permanent basis.

39. 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 at the time of this decision.

40. Therefore the visa applicant meets primary criteria cl 309.211 and cl 309.221 of Schedule 2 to the Regulations.

41. 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

42. 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

    Jennifer Cripps Watts
    Senior Member

    
    

    ATTACHMENT 1 -  Attachments to submission of Dr Willis dated 10 May 2023

    Documents provided to the Tribunal on review

    1. Agok Australian Citizenship Certificate
    2. Residential Tenancy Agreement September 2016 - March 2017
    3. Pacific Property Management Trust Account Receipts from September 2016 - June 2017
    4. Rental Ledger from May 2015 - April 2018
    5. Rental Ledger from March 2020 - April 2021
    6. Rental Ledger from February 2020 to July 2022
    7. Tenant Payment History July 2022 to May 2023
    8. Photo ID Cards and Membership Cards for Cex Myclub Group
    9. Mohammad Din Islam Chowdhury Driver License
    10. Westpac Joint Bank Statement - March 2018 - September 2018
    11. Westpac Joint Bank Statement - March 2020 - September 2020
    12. Westpac Joint Bank Statement - September 2020 - March 2021
    13. NAB Joint Bank Statement - Mar 2019 - Aug 2019
    14. NAB Joint Bank Statement from September 2020 - March 2021
    15. Wills of Applicant and Sponsor
    16. Applicant's Statutory Declaration
    17. Sponsor's Statutory Declaration
    18. Electricity bill from Jan 2018 - Apr 2018
    19. Telstra mobile bill due 19 March 2021
    20. NRMA 2019-2020 Car Insurance
    21. NRMA Car Insurance 2021 to 2022
    22. Letter from the ATO re Tax Contribution 2017-2018
    23. Letter from ATO re Tax Contribution 2018-2019
    24. Ceremonial Marriage Certificate
    25. Certified Marriage Certificate
    26. Photographs together as a couple
    27. Form 888 completed by Manjinder Singh Gill
    28. Form 888 completed by Mohamed Yahya
    29. Form 888 completed by Patha Ahmel
    30. Form 888 completed by Jack Peter Della
    31. Form 888 completed by Taranjeet Singh Khatkar
    32. Letter from Applicant's Employer Joao Branco at Costa Well Grown
    33. Letter from Dr Harjinder Singh dated 19 March 2021
    34. Letter from Dr Golam Ahmed dated 6 April 2021

    35. Tax Return 2022 of Mohammad Din Chowdhury

    ATTACHMENT 2  - 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).