Collier (Migration)

[2020] AATA 2200

Collier (Migration) [2020] AATA 2200 (31 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Paul Drake Collier

VISA APPLICANTS:  Mrs Aniqa Ibnat
Master Abrar Singh Virdi
Miss Farihah Naatash Singh Virdi
Master Naved Jawaad Singh Virdi
Master Shayan Jawad Singh Virdi

CASE NUMBER:  1715909

DIBP REFERENCE(S):  BCC2015/3373907 OSF2015/040335

MEMBER:P. Maishman

DATE:31 January 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 31 January 2020 at 11:43am               

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home county – financial, household and social aspects of relationship – nature of commitment – credibility – undetailed and contradictory evidence – visa applicant coached while giving evidence – written declarants close relatives of visa applicant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65, 376

Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cl 309.211, 309.221

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 18 May 2017 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 November 2015 on the basis of their relationship with their sponsor, Paul Drake Collier, 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 delegate was not satisfied the applicant is the spouse or de facto partner of the review applicant.

4. The Tribunal invited the parties to attend a hearing on 9 January 2019. The Tribunal agreed to a request from the review applicant’s agent to reschedule the hearing to 8 March 2019. The Tribunal agreed to a further request by the review applicant to reschedule the hearing from 8 March 2019 because he had not received documents requested from the Department.

5. The review applicant appeared before the Tribunal on 17 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. The Tribunal received oral evidence from the visa applicant’s sister Rifat Afsana in person.

6. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Tribunal had before it a copy of the Department’s file containing the visa application and documents provided to the Department in support of the application.

9. The review applicant gave the Tribunal a copy of the delegate’s decision record with his application for review. The decision record outlines the visa history. The visa applicant is a 39-year-old citizen of Bangladesh. The visa applicant is widowed and has four children from her previous relationship who are named in this application as secondary visa applicants. The review applicant is a 58-year-old Australian citizen and first met the applicant in person on 27 June 2015 when he visited her family home in Bangladesh. The review applicant proposed to the visa applicant on 5 July 2015 and they married on 8 July 2015.

10. The review applicant gave the Tribunal additional evidence:

    ·written submission of the review applicant dated 1 March 2019;

    ·statutory declarations from the visa applicant, the review applicant, Ferdousi Begum, Mahmood Imran, and Hafsa Khatun;

    ·form 888 declarations from Jahan Akhter, Jack Collier, MD Moshioul Azam (aka Bappi), Darryle Clarke; Imran Masud, and Rifat Afsana (aka Runni);

    ·Superannuation beneficiary form for the review applicant;

    ·Last Will of the review applicant sworn on 13 February 2019;

    ·Western Union money transfer statement;

    ·communication records between the visa applicant and the review applicant;

    ·copies of post cards and greeting cards.   

11. The Department’s file contains a notification under s.376 of the Act certifying documents contained at folio’s 116 to 120 and 124 to 125 were provided in confidence and the disclosure of that material would be contrary to the public interest.

12. The review applicant did not respond to the Departments written invitation to make written comments on the validity of the certificate and the exercise of the Tribunal’s discretion to disclose the material provided to the Department in confidence.

13. The Tribunal considers the information was provided to the Department in confidence and determines that the certificate is valid. The Tribunal is unable to confirm the source or veracity of the information provided in confidence to the Department and accordingly the Tribunal gives the information no weight. The Tribunal did not take the information into account in making its decision. The Tribunal did not exercise its discretion to disclose that material or information to the review applicant.

14. The Tribunal decided to hear the visa applicant’s oral evidence in confidence. The hearing room was cleared of parties to the application. The Tribunal asked the visa applicant to clear the room at her end in order to receive her oral evidence in confidence. The visa applicant confirmed her identity to the Tribunal and declared she was the only one in the room. The Tribunal was able to hear muffled conversation in the background during the visa applicant’s evidence. The Tribunal asked the visa applicant if she was alone on several occasions during her evidence. The Tribunal told the visa applicant it was concerned she was being coached in her answers. The visa applicant agreed somebody was providing the answers to the questions being asked by the Tribunal. The visa applicant refused to identify that person. It is clear to the Tribunal that the visa applicant did not give her evidence independently. The Tribunal finds the visa applicant is not a credible witness and gives the visa applicant’s oral evidence weight accordingly.

15. The review applicant gave his evidence in person. The review applicant was reluctant to freely give his evidence and answer questions in detail. The Tribunal acknowledges this may have been the visa applicant’s discomfort at being in a formal hearing environment. The Tribunal was concerned however at the review applicant’s ability to recollect detail of his relationship beyond what was provided generically in statements already before the Tribunal. The Tribunal treated the review applicant’s evidence with caution where it wasn’t supported independently. 

16. The issue in the present case is whether the visa applicant has a genuine and continuing relationship with the review applicant.

    Whether the parties are in a spouse or de facto relationship

17. 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 applicant claims to be the spouse of the sponsor who is an Australian citizen.

18. ‘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).

19. 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?

20. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Department’s file contains a copy of an affidavit of marriage sworn in Dhaka on 8 July 2015, and a marriage certificate from the Office of the Nikah Registrar certifying the marriage was solemnised on 8 July 2015. 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?

21. The Tribunal considered the matters set out in r.1.15A(3).

22. The Tribunal has considered the evidence in respect of the financial aspects of the parties’ relationship. This includes any evidence as to the joint ownership of assets, any joint liabilities, the extent to which the parties have pooled their financial resources, any legal obligations owed by the other party and the general sharing of daily household expenses.

23. The visa applicant was coached in her answers to the Tribunal’s questions about her financial situation. The visa applicant said she did not have any assets or liabilities. The visa applicant said the review applicant sent her $200 per month by Western Union.

24. The review applicant told the Tribunal that he sent $200 per month to the visa applicant except when he was unemployed. The review applicant provided a copy of a letter from Western Union confirming her regular transfer of funds from the review applicant to the visa applicant.

25. The review applicant’s written submission of 1 March 2019 claimed that it was a practical impossibility for the parties to acquire joint assets or liabilities in Australia and that the transfer of money from the review applicant to the visa applicant indicated an intention to establish joint financial arrangements with the sponsor. The review applicant submitted that it would be unusual and unreasonable for them to combine their financial affairs on a substantial basis because they have their own financial commitments/expenses in their respective home countries.

26. The Tribunal noted the superannuation binding death benefit nomination provided to the Tribunal was signed and dated by him on 13 February 2019. The Tribunal notes the visa applicant is nominated as a 50% beneficiary of the review applicant’s superannuation. There is no evidence before the Tribunal that this nomination has been lodged with the superannuation company and the Tribunal gives this document no weight as evidence of a financial commitment by the parties to each other.

27. The parties do not have joint ownership of assets or any joint liabilities. The parties have not pooled their financial resources and do not have any legal obligations owed to each other. The Tribunal acknowledges the parties live in different countries and it is therefore difficult to combine their financial affairs. The Tribunal notes documentary evidence supports the parties’ oral evidence that the review applicant periodically sends money to the visa applicant.

28. Having considered all the evidence, the Tribunal is not persuaded that the evidence about the financial aspects of the parties’ relationship is indicative of a couple in a marriage relationship.

29. The Tribunal considered the evidence in respect of the nature of the parties’ household, including joint responsibility for care and support of children, the parties living arrangements, and any sharing of housework.

30. The visa applicant gave evidence that the review applicant spoke to her children but did not know how often or when he most recently was in touch with them. The visa applicant said had seen the applicant twice in person and she had stayed in the same room with him when they got married in August 2015 and when they were in Bali February 2019. The Tribunal prompted the visa applicant about any other time the parties had seen each other in person and she recalled the review applicant’s visit to Bangladesh in December. The visa applicant was unable to elaborate on the details of that visit.

31. The review applicant gave oral evidence that he would be the father figure to the visa applicant’s children. The review applicant said he lives in a granny flat at Bullsbrook in order to save money. He said the visa applicant’s children will stay with the visa applicant’s sister and brother-in-law, Runni and Bappy, who have a four bedroom/2 bathroom house and no children.

32. The parties’ have had limited opportunity to establish a household given the limited periods of time the parties have spent together in the same country. The Tribunal was not persuaded that the visa applicant and review applicant intend to commence a household together if the visa applicants came to Australia. The Tribunal was not persuaded the review applicant would have a parental role in the upbringing of the visa applicant’s children given his intention for them to live with Runni and Bappy.

33. The Tribunal is not persuaded that the evidence of the nature of the parties’ household is indicative of a couple in a marriage relationship.

34. The Tribunal considered the evidence in respect of the social aspects of the parties’ relationship including whether they represent themselves to other people as being married to each other, their friends and acquaintances opinion about the nature of the relationship, and the basis on which the parties plan and undertake joint social activities.

35. The parties gave evidence that they had holidayed together in Bali between 22 March 2019 and 25 March 2019. A few photographs were provided to the Tribunal that show the review applicant and visa applicant together. The visa applicant was coached during her answers to questions about her Bali trip and was unable to independently answer questions such as where she stayed, who she stayed with, and who went on the trip. The review applicant told the Tribunal that he did very little planning for the Bali holiday and all arrangements were made by Runni including liaising with the visa applicant. The review applicant says he paid for the trip but could not produce any receipts because they were held by Runni. The review applicant said he did not discuss any of the planning of the trip to Bali with the visa applicant directly. The review applicant said that he only had a short amount of leave due to starting work in October 2018 and so could only take a short trip. Ms Afsana gave oral evidence that she had not accompanied her husband (Bappi) on the trip because he needed a break. 

36. The Tribunal is concerned that this short visit to Bali was arranged solely to give a favourable impression of the parties’ relationship to the Tribunal. The parties had not seen each other in person for more than three years. The trip to Bali was undertaken after the Tribunal put the parties on notice to attend a hearing to give evidence. The parties undertook no discussion between themselves about taking a holiday to Bali together. The Tribunal finds it implausible that the parties would spend presumably a significant amount of money to undertake such a short holiday. The Tribunal attributes no weight to this evidence as an indication that the review applicant and visa applicant plan and undertake joint social activities or are in a genuine and continuing relationship.

37. The Tribunal notes the statutory declarations provided by the visa applicant’s siblings Ms Ferdousi Begum, Mahmood Imran and the sister of MD Moshioul Azam, Mosammat Hafsa Khatun; and the Form 888 statements completed by her siblings Jahan Akhter, Imran Masud, and Rifat Afsana (aka Runni) and her brother-in-law MD Moshioul Azam (aka Bappi) each describe the evolution of the review applicant’s and visa applicant’s relationship including specific dates of events such as first phone call, first visit and wedding day and each claim that the relationship is genuine.  

38. The Tribunal is concerned that each of the declarant’s who have provided written statements are close relatives of the visa applicant and so have a close interest in a favourable outcome. The Tribunal attributes little weight to the statements of the visa applicant’s family.

39. The review applicant’s son, Jack Collier, and previous work colleague, Darryle Clarke, provided statutory declarations supporting the review applicant’s relationship with the visa applicant. The Tribunal gives these declarations little weight because neither of the declarant’s has met the visa applicant and is able to provide reliable evidence from their own knowledge.

40. The SMS messages provided to the Tribunal did not show any further social interaction than the occasional mention of immediate family members. The SMS screenshots provided to the Tribunal do not display any joint planning of social activity or interaction between friends and acquaintances. The photographs provided to the tribunal show the parties together but do not demonstrate any public display of their relationship.

41. The Tribunal is not satisfied that the parties represent themselves to other people as being married to each other, or that their friends and acquaintances consider their relationship to be a genuine marriage. The Tribunal is not satisfied that the parties plan and undertake social activities together.

42. The Tribunal has considered the evidence provided in relation to the parties commitment to one another 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 their relationship as long-term.

43. The visa applicant was unable to tell the Tribunal in her oral evidence how often she had seen the review applicant in person. The visa applicant said she had seen the review applicant in Bali. The Tribunal prompted the visa applicant whether she had ever met the review applicant in Bangladesh and she responded, after a muffled discussion, that she was married on 8 July 2015. The visa applicant said she had not seen the review applicant between their marriage and their trip to Bali. The Tribunal queried if the review applicant had visited in December 2015, the review applicant again undertook a muffled discussion before answering the question.

44. The parties claim to stay in touch by telephone and SMS messages. The review applicant said the SMS messages provided to the Tribunal were taken from his phone and messages from the visa applicant came to his phone and were headed ‘Aniqa’. The review applicant could not explain why each of the messages appeared to have been sent or received within the week upon which they were printed out. The review applicant could not explain why the SMS messages were appended with dates. The visa applicant told the Tribunal she referenced the review applicant in her phone as ‘sweetheart’. Ms Afsana (Runni) gave evidence that her sister, the visa applicant, took screen shots of each SMS sent to her by the review applicant in case anyone loses their phone and these are what she has provided to the Tribunal.

1. The Tribunal asked the review applicant about a photograph provided to the Tribunal showing the visa applicant in a dress with beads around her head (folio 139). The review applicant said he thought it was a photo from when the visa applicant worked as a model. The review applicant could not say how long ago the visa applicant worked as a model, whether she continued to work as a model, or whether she was currently employed in any capacity. The Tribunal notes that comments either side of the photo indicate the visa applicant sent the review applicant a picture of herself in the dress he had gifted her for her birthday, and his admiration in response. The Tribunal acknowledges the review applicant may not have personally purchased the dress but is concerned that the visa applicant would not recollect acknowledging a photo of his wife modelling an outfit that he had arranged to be gifted to her for her birthday.

2. The Tribunal is not satisfied that the SMS messages demonstrate contemporaneous communication between the parties. The messages are from inconsistent phones. The screenshots are variously referenced as ‘honeybee’, ‘Paul Australia’, ‘Paul’, ‘Abrar Sing’, ‘Paul baby’. None of the screenshots are referenced in the names ‘Sweetheart’ or ‘Aniqa’ given by the visa applicant or the review applicant.

3. The Tribunal asked the review applicant about the postcards he provided to the Tribunal. The review applicant could not explain how a postcard from him to his wife, addressed to his address, was delivered to his wife. The review applicant subsequently agreed with the evidence of Ms Afsana that she been with the review applicant when he purchased them and had taken them with her when she visited Bangladesh. The Tribunal is concerned with the review applicant’s ability to recollect genuine contacts with the visa applicant and attributes little weight to the postcards or greeting cards as evidence of the parties relationship with one another.

4. The parties both claim that their relationship has been ongoing and will continue to be in the long-term.

5. The review applicant and visa applicant have been married to each other for more than four years. They live in different countries and have stayed together for only brief periods. The Tribunal is not persuaded by the evidence that the visa applicant and review applicant maintain their relationship by communicating by telephone or SMS messaging. There is no evidence before the Tribunal that demonstrates they rely on each other for companionship or emotional support.

6. The Tribunal is not satisfied the evidence about the nature of the review applicant’s and visa applicant’s commitment to each other indicates they are a couple in a marriage relationship.

7. The Tribunal has considered the evidence as a whole and finds that the visa applicant and review applicant have not demonstrated that they have a mutual commitment to a shared life to the exclusion of all others; that they have a genuine and continuing relationship; or that they do not live apart on a permanent basis.

8. On the basis of the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made.

9. Therefore the visa applicant does not meet cl.309.211(2).

10. The secondary applicants consequently do not meet the secondary criteria in cl.309.311 of Schedule 2.

11. For the reasons above, the visa applicants do not satisfy the criteria for the grant of the visa.

    DECISION

12. The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

    P. Maishman
    Member

    
    

    ATTACHMENT  -  Extract from Migration Regulations 1994

    1.09ADe 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).