Binti Md Shash (Migration)

[2019] AATA 524

Binti Md Shash (Migration) [2019] AATA 524 (20 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rabiahtul Adawiah Binti Md Shash

CASE NUMBER:  1715362

DIBP REFERENCE(S):  BCC2016/1835288

MEMBER:Hugh Sanderson

DATE:20 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 20 February 2019 at 1:36pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – de facto partner – married under Islamic law – sponsor’s continuing relationship with first wife – polygamist relationship – mutual commitment to a shared life to the exclusion of all others – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 359AA, 65
Migration Regulations 1994 (Cth), r 1.09A; Schedule 2, cls 820.211, 820.221

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 of a delegate of the Minister for Immigration on 27 June 2017 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 26 June 2015 on the basis of her relationship with her sponsor. At that time, Class UK contained only one Subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied the applicant was the de facto partner, as defined in s.5CB of the Act, of the sponsoring partner.

   Background

4. The applicant is a citizen of Malaysia and is currently 25 years old. She is sponsored in her application by Samuel Attam who was born in Malaysia and is currently 47 years old. He is married to Siti Ruqaiyah Talhah who sponsored him for a Partner visa. It was claimed that he has lived separately from his wife since 12 April 2012. They have seven children. The sponsor is an Australian citizen.

5. The applicant was granted a series of Visitor visas and entered Australia on those visas as follows:

   ·From 29 April 2012 to 5 July 2012;

   ·From 29 October 2012 to 27 January 2013;

   ·From 11 April 2013 to 11 June 2013;

   ·From 20 November 2013 to 24 July 2014;

   ·From 14 September 2014 to 16 January 2015;

   ·From 1 February 2015 to 10 June 2018.

6. The applicant previously applied for a Subclass 820 Partner visa in April 2014 sponsored by the sponsor. She was granted a Bridging visa and departed Australia on that visa on 24 July 2014, returning on 14 September 2014. The Department refused the application for the Partner visa on 19 December 2014 and the applicant departed Australia after the refusal of that application on 16 January 2015. On 1 February 2015 she returned to Australia on a Subclass 601 Electronic Travel Authority visa. The current application was then filed. She left Australia on 10 June 2018 and returned to Australia in January 2019.

7. In the application it was claimed that the parties met for the first time on 21 March 2012 and that was the day they started their de facto relationship and committed to a shared life together to the exclusion of all others. It was claimed that the sponsor ended his relationship with his wife on 28 April 2012 when they separated.

8. In a statement provided by the sponsor dated 29 August 2016, he claimed that his relationship with his wife ended on 12 April 2012 when he ceased living with her. He claimed his relationship with the applicant commenced in March 2012.

9. The Department requested the applicant provide a statement outlining the details of the commencement of her relationship with the sponsor. No statement was provided by the applicant. Various other documents were provided, however, including statements by two friends claiming the relationship was genuine, a joint bank account and a joint residential tenancy agreement.

10. The parties have had three children together. These are:

    ·Muhanad Redhowi Mohd Rizal, born [in] August 2013 in Malaysia;

    ·Ahmad Badaruddin Samuel, born [in] July 2015 in Gosford while the parties were claiming to be living together in Canning Vale, Western Australia; and

    ·Muhammad Nasiruddin Al-Fateh Samuel, born [in] May 2017 in Sydney.

11. The delegate who considered the application noted the following issues:

    ·The joint bank account statements showed money being transferred into and out of that account but did not disclose any pooling of financial resources or meeting of the day-to-day household expenses;

    ·The joint residential tenancy agreement for a property in Canning Vale was provided from 3 August 2016 to 2 August 2018, however, there was no evidence of the parties ever sharing a household before this;

    ·Statements from two friends were provided, however, one of the statements refers to the parties having been “married”, which was inconsistent with the information provided by the applicant;

    ·Despite two requests by the Department for the applicant to provide a statement as to the relationship history, no statement had been provided;

    ·The only independent evidence to indicate the sponsor had ended his relationship with his wife was an AGL gas bill in the name of his wife;

    ·Varying dates had been given by both the applicant and the sponsor as to when the sponsor ended his relationship with his wife and when their relationship commenced;

    ·It was accepted that the applicant and the sponsor were the parents of three children; and

    ·There was no information which would indicate the parties combined their affairs.

12. Taking into account these matters, the delegate was not satisfied that the parties were in a genuine and continuing or mutually exclusive relationship. The delegate was not satisfied that the applicant was the de facto partner, as defined in s.5CB of the Act, of the sponsoring partner. The delegate found that the applicant did not meet the criteria in cl.820.211 and refused the application.

    Information to the Tribunal

13. The applicant provided further documents to the Tribunal including the following:

    ·Marriage certificate dated 10 April 2012 issued under the Muslim Family Law Enactment (State of Johor) 2003 noting that the parties were married under “Syariah law” (sic);

    ·Photos of the parties together; and

    ·Bank statements.

14. The applicant appeared before the Tribunal on 18 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant was represented in relation to the review by her registered migration agent who attended the hearing.

15. At the start of the hearing, the Tribunal explained to the applicant the process under s.359AA of the Act. The Tribunal explained to the applicant it would be putting information to her which would be the reason, or a part of the reason, for affirming the decision under review. It would explain why this information was relevant and then invite the applicant to comment on or respond to the information. If she required more time, she could request an adjournment.

    Evidence of the applicant

16. The applicant provided her evidence in a confused and evasive manner. She was not able to provide details of where she was currently living. She said that she had only been living in the home for two days. She had difficulty saying where she was living before that or when she returned to Australia. She said that her husband had been living in the home she had moved into for one year. She gave confused and inconsistent information as to the arrangements of where she was living in Malaysia. She said that she was living with her mother, father and three of her eight siblings. She said that while in Malaysia the sponsor did not stay with her all the time because he was busy with his work. This was even when he was in Malaysia. She said that she travelled to Malaysia because she missed her parents.

17. The applicant gave confused information as to where she had been living when in Australia. She said that she was currently living with her husband, the children, a “grandmother” and four of the seven children of the husband’s first marriage. The applicant gave confused information as to who the “grandmother” was or who she was the grandmother to. At one point she said that the grandmother was the mother of the children. When the Tribunal noted that this was the sponsor’s first wife, the applicant said that it was the children’s grandmother.

18. The applicant said that she did not know any of the details of the husband’s first wife. She said that the husband lost contact with his first wife in 2012, that he has not seen her since then, that she was not sure if she has any contact with her children and that the sponsor has never travelled overseas with his first wife since she married him in 2012. She said that she did not know the circumstances of the end of the sponsor’s relationship with his first wife or when it happened. She said that her marriage to the sponsor was arranged through a friend of her father who knew the sponsor.

19. The Tribunal referred to the process under s.359AA of the Act referred to above. The Tribunal referred to the movement records of the applicant, the sponsor, and the sponsor’s first wife. These records show that all three had travelled overseas together departing on 24 July 2014 on the same flight with the sponsor and his first wife returning to Australia on the same flight on 17 August 2014. This was relevant as it was inconsistent with the information being provided by the applicant that she and the sponsor had no contact with his first wife and undermined her credibility. It was also relevant as it showed that the sponsor was in a continuing relationship with his first wife and therefore he did not have a mutual commitment to a shared life with the applicant to the exclusion of all others.

20. The applicant responded by claiming that she could not remember travelling with the sponsor’s first wife.

21. The Tribunal referred to the applicant’s Partner visa application filed in April 2014. In that application, the applicant stated that the sponsor had not been in any previous relationship, indicating that he was in a continuing relationship with his first wife and in the sponsorship form he stated that his marriage to his first wife was “still on”. This information was relevant as it was inconsistent with the information provided by the applicant that the sponsor’s relationship with his first wife ended in 2012 and indicated that the applicant was in a continuing relationship with his first wife and therefore her relationship with the sponsor was not exclusive.

22. The sponsor responded by claiming that the applicant had told her that he had divorced his wife under Islamic tradition.

23. The Tribunal referred to the statements provided by the sponsor in the applicant’s Partner visa application filed in April 2014. The statements made by the sponsor in support of that application included the claim that his wife also accepts the applicant as part of their family. This information was relevant as it indicated that the sponsor was in a continuing relationship with his first wife and his first wife had accepted the applicant as the sponsor’s second wife and as part of the family. This indicated the sponsor was not in an exclusive relationship with the applicant.

24. The sponsor responded by claiming that the sponsor’s first wife does not live with them and that she had moved out of the home.

    Evidence of the sponsor

25. The sponsor said that his first wife left him in 2012. He said that he has had no contact with her since then. He said that she lives in Geraldton and the only contact he has with her is by telephone. He claimed his first wife’s mother lives with the children of his relationship with his first wife.

26. The sponsor gave confused information as to the time the applicant had spent living in Malaysia from June 2018 until she returned. He was not sure if she had returned in November or December 2018. He said that she was living in Malaysia with her parents and no one else.

27. The sponsor claimed that his marriage to his first wife ended in April 2012. He said that she did not like him travelling all the time and could not accept a polygamist marriage. He again claimed that he had not had any direct contact or seen his first wife since then and the only contact he had with her was by telephone. He said this contact was only every five or six months. He said that he brought his children to Sydney in 2015 because he had opened a butcher shop in Sydney. He said that his first wife had been living in Geraldton since they separated. He claimed that he had never travelled overseas with his first wife since he married the applicant.

28. The Tribunal referred to the movement records which showed that the sponsor had travelled overseas with his first wife in 2014. This undermined the credibility of the information being provided by the sponsor and also indicated that he was in a continuing relationship with his first wife. The sponsor agreed that the fact that he had travelled with his first wife indicated that he was in a continuing relationship with her.

29. The Tribunal referred to the AGL gas account for the period 9 December 2015 to 4 March 2016 in the name of the sponsor’s first wife, which showed her to be living in a home in Green Point. This was relevant as it indicated that the sponsor was having continuing contact with his first wife and he was in a continuing relationship with her. The sponsor said that he arranged for his first wife to move with the children to Sydney in 2015 to look after his business interests in Sydney. He said that he had continuing business interests in Perth and Sydney.

30. The Tribunal referred to the information in the applicant’s first Partner visa application filed in April 2014. This indicated that the sponsor’s relationship with his first wife was ongoing and that he had discussed taking on a second wife with his first wife and she accepted the applicant as part of their family. This indicated the sponsor had entered a polygamous relationship and he was not in an exclusive relationship with the applicant.

31. The sponsor acknowledged that he was in a continuing relationship with his first wife. He said that his relationship with his first wife is continuing. He confirmed that he had two wives.

    Further evidence of the applicant

32. The Tribunal referred to the process under s.359AA of the Act described above. The Tribunal put to the applicant that the information provided by the sponsor was that he was in a continuing relationship with his first wife. This was relevant as it indicated that the sponsor’s relationship with the applicant was not an exclusive relationship and instead indicated that he was in a polygamist relationship with the applicant and his first wife.

33. The applicant acknowledged that her relationship with the sponsor was not an exclusive relationship. She acknowledged that the sponsor was in a continuing relationship with his first wife. She said that the thing is that she wanted to live with her husband and her children and did not want to be separated from them. She said that she knew the sponsor was not in an exclusive relationship with her but she accepted this fact.

34. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

35. The issue in the present case is whether the applicant is in a de facto relationship with the sponsor.

    Whether the parties are in a spouse or de facto relationship

36. Clauses 820.211(2)(a) and 820.221 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. In the present case the applicant claims to be the de facto partner of the sponsor who is an Australian citizen. The sponsor remains married to his first wife and Australian law does not recognise as valid any second marriage while the sponsor remains married to his first wife.

    Are the parties in a de facto relationship?

37. 'De facto partner' is defined in s.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).

38. In forming an opinion as to 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 parties’ 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.

39. The primary issue in respect of whether the applicant is the de facto partner, as defined in s.5CB of the Act, of the sponsoring partner is the requirement in s.5CB(2)(b). This requires the parties to have a mutual commitment to a shared life to the exclusion of all others. The parties have provided various documents and information which would indicate the sponsor is financially supported by the applicant, they have lived together over various periods of the claimed relationship and that their relationship is recognised by friends and family as genuine. They have three children together.

40. The sponsor married his first wife on 8 June 1996. They have seven children together. Although the sponsor claimed that he had divorced his first wife under Islamic law, there is no evidence to support this and the applicant and his first wife remain married under Australian law.

41. The applicant and the sponsor initially claimed that the sponsor’s relationship with his first wife ended in 2012. The claims they initially made to the Tribunal at the hearing was that the sponsor’s first wife left the sponsor in 2012 and he had not had any contact with her since then, apart from telephone calls every five or six months. When information inconsistent to this was put to the parties, including the fact that the applicant, sponsor and the sponsor’s first wife travelled overseas together on 24 July 2014, the applicant’s initial reaction was that she could not recall. The sponsor’s initial reaction was to say nothing.

42. The Tribunal finds that both the applicant and the sponsor have been willing to provide false information to the Department and to the Tribunal in support of the application. Specifically, the applicant and the sponsor have been willing to provide false information as to any continuing relationship the applicant has with his first wife. This has made obtaining credible information as to the circumstances of the sponsor’s first wife and her relationship with the sponsor difficult to obtain by the Tribunal. The applicant and the sponsor claimed the children were being cared for by their maternal grandmother. They claimed the sponsor’s first wife was living in Geraldton. The Tribunal does not accept this evidence and finds that the sponsor, when in Sydney, is living with his first wife and their four youngest children.

43. The sponsor arranged for his first wife to live in Green Point to look after their children and have a home in Sydney where he could live when he was dealing with his business interests in Sydney. The AGL gas account shows that the sponsor’s first wife was living in Sydney and not Geraldton as the sponsor claimed. The sponsor acknowledged that he made these arrangements for his first wife. The birth certificate of the applicant’s second child shows he was born in Gosford, near Green Point, despite claiming to live in Canning Vale in Western Australia. The applicant would only have arranged to give birth in Gosford if she and the sponsor were living with the sponsor’s first wife.

1. Eventually, both the applicant and the sponsor acknowledged that the sponsor was in a continuing relationship with his first wife. The applicant and the sponsor agreed that the information provided claiming that the sponsor’s relationship with his first wife had ended was incorrect. The applicant acknowledged the sponsor was in a continuing relationship with his first wife, but accepted the fact that she was in a polygamist relationship with the sponsor.

2. The relationship the sponsor has with his first wife cannot be considered as a simple affair or a continuing relationship between parents of children after their own marital relationship has ended. They have continued to share financial arrangements and provide care for their children. The relationship has been ongoing and continued even after the sponsor entered into a relationship with the applicant, which was formalised by way of a marriage under sharia law. They have travelled overseas together. The sponsor’s first wife continues to care for their children and the sponsor continues to live with her when in Sydney.

3. Part of the difficulty in assessing the full nature of the relationship between the sponsor and his first wife is that the parties have not provided information about their continuing relationship. Both the applicant and the sponsor have now acknowledged that the sponsor’s marriage with his first wife is continuing and that by marrying the applicant under Islamic law he has entered into a polygamist relationship. Polygamist relationships are recognised and accepted under Islamic law. The sponsor stated that he could have up to four wives. The applicant accepts the sponsor is in a continuing marital relationship with his first wife and that she is his second wife. Although the applicant may be willing to live with the sponsor in a polygamist relationship, Australian law does not recognise polygamist marriages and the requirement of the Act is that the parties have a mutual commitment to a shared life to the exclusion of all others. The fact that the parties are in a polygamist relationship means that they do not have a mutual commitment to a shared life to the exclusion of all others.

4. For the above reasons, the Tribunal finds that the parties do not have a mutual commitment to a shared life to the exclusion of all others. Although other aspects of the relationship may be met, the fact is that the applicant and the sponsor are in a polygamist relationship with the sponsor’s first wife. As the sponsor continues his spousal relationship with his first wife the parties are not in an exclusive relationship.

5. On the basis of the above the Tribunal is not satisfied that the requirements of s.5CB(2)(b) are met at the time the visa application was made and at the time of this decision. Therefore the applicant does not meet cl.820.211 and cl.820.221. There is no information before the Tribunal that the applicant would meet any of the alternate criteria for the grant of the visa.

6. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa and the decision to refuse the application must be affirmed.

   DECISION

7. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

   Hugh Sanderson
   Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   1.09A    De 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).