Butt (Migration)

[2020] AATA 6084

Butt (Migration) [2020] AATA 6084 (23 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Naheed Butt

VISA APPLICANTS:  Mr Nasir Butt
Master Muhammad Arsalan Butt

CASE NUMBER:  2005757

DIBP REFERENCE(S):  BCC2019/1942986

MEMBER:Peter Vlahos

DATE:23 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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

This Statement was made on 23 December 2020 at 8.20am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act– decision under review remitted

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 48, 65
Migration Regulations 1994, r 1.15, 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 12 March 2020 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 16 April 2019 on the basis of their relationship with their 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 because the sponsor (the ‘review’ applicant) does not meet the definition of spouse in s.5F of the Act or of de facto provided in s.5CB of the Act.

4. The review applicant appeared before the Tribunal on 3 December 2020 to give evidence and present arguments via the telephone. The Tribunal also received oral evidence from Mr Nashir Ahamad Butt (the ‘primary’ Applicant) and from the child, Master Muhammad Arsalan Butt.  

5. The review applicant was represented in relation to the review. The representative 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 at the time of application and decision the parties were in a genuine spousal relationship.

   Whether the parties are in a spouse or de facto relationship

8. Clause 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.

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 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?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal is satisfied that the parties married in Larkana, Pakistan on 11 April 2008 as is evidenced by a marriage certificate[1]. On the evidence, before the Tribunal, 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) of the Act.

    [1] See Department of Home Affairs file BCC2019/1942986 and the AAT File.

    Are the other requirements for a spouse relationship met?

11. The Tribunal has had the benefit of observing material and evidence which was not provided to the Department’s delegate from the review Applicant. This information includes detailed statements about the relationship, and photographic documentation concerning the relationship.

    Financial aspects of the relationship

12. The parties have provided written and oral evidence in relation to their finances to the Tribunal and the Tribunal has had the opportunity to consider that evidence after having heard the applicants’ explanations concerning the relationship.

13. The delegate in his decision stated that there was an absence of evidence to support the financial aspect of the relationship between the parties. Indeed, the applicants were provided with an opportunity to submit evidence. The parties in response provided a statement issued from the Commonwealth Bank of Australia dated 25 April 2019 which showed a list of transactions from 1 January 2019 to 1 April 2019 and showing a balance of $AUD28.00. No other information was provided. Further, in the application the parties stated “…we are husband and wife, have two children and everything we share in life…” The applicant was asked by the Tribunal to explain what financial support she had provided to her spouse and child in Pakistan and to provide details as to how they lived – financially as a family unit. The ‘review applicant’ told the Tribunal that when the parties were living together, her husband was the ‘sole bread provider’. Her tasks were only to take care of the household and the family while her husband provided for the family in general. This arrangement was also confirmed to the Tribunal by the applicant’s husband. Also, the applicant told the Tribunal, that in Pakistan the ‘family’ lives with other family members in a family or communal home where the provisions of the household are catered for by all parties. The Tribunal was also told that that while she receives no financial assistance from her husband currently, he does provide her with items she might require for her subsistence – for example found items and clothes. The applicant also provided in evidence a ‘receipt’ of money she had sent to Pakistan for the needs of her spouse and child there. The Tribunal understands and accepts the explanation provided by the parties as far as it concerned the provision of funds to each other while the husband lives in Pakistan.

14. Also, it was noted by the Tribunal that the husband lives with other family members in a family home which has provision for all family members and is a source of support for the husband and when the review applicant is in Pakistan.

15. Moreover, the Tribunal also understands the ethnic mores that might apply in this situation as far as it concerns the sponsor and her Pakistani husband. Families in Pakistan as in other parts of the Indian sub-continent as in most South-East Asia and the Middle East are very close in that – the family unit – provides a welfare safety-net for not only children but for all members of the family unit. The ‘family’ is significant and plays a major role in providing assistance when required by its members, when the need surfaces, as it has done so in this instance with the applicant and his sponsor.

16. Regardless of the fact that the sponsor and the applicant currently reside in different countries, the evidence presented to the Tribunal showing some monetary assistance provided by the parties to each other indicates that they have every intention – namely to provide assistance to each other and consider their finances as one for both and for their immediate family.

17. Whilst both the sponsor and the applicant have admitted that as a couple they have a joint bank account with minimal funds, the sponsor explained that previously she had not been receiving any Centrelink assistance (which she is now receiving) and went on to tell the Tribunal that any funds she has are always made available for the needs of the family and in particular the children. Moreover, the provisions of some funds to the applicant in Pakistan when needed by his wife/sponsor indicates that the two considered that a joint financial relationship existed between them.

18. Though With regard to the evidence provided to the Tribunal – both written and oral, the Tribunal gives weight to the financial aspects of the relationship here under consideration.

    Nature of the Household

19. In assessing the genuine nature of the relationship, consideration must be given to all circumstances of a relationship including any joint responsibility for the care and support of children, living arrangements of the parties and any sharing of responsibility for housework.

20. The delegate stated in his decision that based on the information provided by the sponsor and the applicant though they had married on 11 April 2008 no information had been provided to show whether the applicant and sponsor shared a household and the responsibilities of a household. As the sponsor told the Tribunal, that after her marriage to the applicant/husband, she lived with him and his family until she decided to come to Australia in 2015 with one of her two children. While in Pakistan, the sponsor told the Tribunal that it was her husband’s responsibility (the applicant) to provide for the day-to-day needs of their household. Her sole responsibility was to take care of the running of the house and children of the marriage. As for the ‘house’ as such, the two lived in family compound which included the sponsor’s in-laws and other family members as is custom in countries like Pakistan but nevertheless, the couple for considerable period of time resided together and had from the information provided established their household.

21. The sponsor and applicant currently reside in separate countries therefore it is accepted that any recent information in relation to current household matters will not be detailed or necessarily available to support in toto the relationship. The two did however live under the one roof for a considerable period before the sponsor/wife came to Australia in 2015 which displayed a genuine and continuing nature of the relationship she has had with the applicant. Indeed, if the sponsor was to return to Pakistan, she will no doubt reside in the family compound with her husband and children as she had done so before. Though the details are minimal, the Tribunal is satisfied that a household had been in existence and subsists even if the sponsor is currently in Australia.

    Social Aspects for the relationship

22. In assessing the social aspects of the relationship, the delegate considered social interactions, the way the applicant and sponsor presented the relationship to others, and the level of recognition of the relationship by family and friends as a reasonable test of the genuineness of a relationship. The delegate did not accept the statements provided as providing minimal information and complained that the applicant and sponsor provided very little photographic evidence about their relationship’s interaction within their social circles.

23. At the hearing both the sponsor and the applicant told the Tribunal that many people knew about their marriage. The family’s friends knew that both the applicant and his sponsor were husband and wife and that they had two young boys. The sponsor admitted to the Tribunal that photographs were few but those provided by the applicant and his sponsor[2] show a family that is very close to each other, a family that enjoys social outings with other friends and family and from this evidence the Tribunal observed that the family – when it could, socialised openly with friends and the applicant’s family and that the parties were very open about their relationship and the relationship was accepted by all that knew them.

    [2] See AAT file – family photographs

24. The Tribunal finds that there is social recognition of the marriage and gives weight to this aspect of the relationship.

    Nature of a person’s commitment to each other

25. The couple have known each other since 2005 living in the same neighbourhood and their families known to each other and married in 2008. They lived for seven years together before the sponsor came to Australia in 2015. They have two children. They both wish to be together in Australia as one family. The separation has been difficult to both. The distance is compensated by the two constantly exchanging their feelings over the phone.

26. The Tribunal having considered the oral evidence and written evidence of the parties and statements provided by third parties, the Tribunal concludes there is despite the distance between the sponsor and the applicant – each living in different countries, a close communication between them as discussed in detail between them as far as it concerns the issues of their relationship and family. Daily life concerns are discussed in detail between them and mutual care and concern is observed by what the Tribunal was told in evidence at the hearing.

27. There is in the Tribunal’s opinion, an awareness of each other’s needs and both looked forward to being together and living their lives as an independent family unit. The couple displayed support for each other and for their family in their daily lives (even at a distance) and have solid plans for a home for themselves once they are reunited in Australia.

28. The Tribunal finds there is evidence of long-term commitment to a spousal relationship.

29. Having regard to the financial aspects, the nature of the household, the social aspects and the nature of the persons’ commitment to each other, the Tribunal considers these findings together as demonstrating that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that they are in a genuine spousal relationship and that therefore meet the requirements of s.5F of a spousal relationship.

30. 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 the time of this decision.

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

32. 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

33. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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

    Peter Vlahos
    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).