Ezedyar (Migration)

[2020] AATA 84

Ezedyar (Migration) [2020] AATA 84 (6 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Miss Latifa Ezedyar

VISA APPLICANT:  Dr Said Aminullah Amin

CASE NUMBER:  1722269

DIBP REFERENCE(S):  BCC2016/2821594 OSF2011004111 OSF2012001855

MEMBER:P. Maishman

DATE:6 January 2020

PLACE OF DECISION:  Perth

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 06 January 2020 at 9:44am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – existence of applicant’s first wife – marriage with sponsor invalid – genuine de facto relationship – financial aspects – nature of household – social aspects – nature of commitment – not in a relationship with first wife – 12-month requirement – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), rr 1.09A, 1.15A, 2.03A; 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 and Border Protection on 14 September 2017 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 25 August 2016 on the basis of his relationship with his sponsor, the review applicant (the sponsor). 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 (the applicant) did not satisfy cl.309.211(2) because the delegate was not satisfied the applicant and sponsor had a mutual commitment to a shared life together to the exclusion of all others.

4. The sponsor appeared before the Tribunal on 19 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant, Said Aminullah Amin, by telephone.    

5. The review applicant was represented in relation to the review by her registered migration agent. 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 Tribunal had before it the Department’s file containing the visa application and the documents referred to in the delegate’s decision record. The applicant is a 50-year-old citizen of Afghanistan. The applicant claims to have had one previous marriage and six children were born from that relationship. The applicant claims his previous marriage ceased because his wife died. The sponsor is 47 years old. The sponsor arrived in Australia on 20 June 2000 and has been granted Australian citizenship.

8. The sponsor gave the Tribunal a copy of the delegate’s decision record with her application for review. The parties claim to have first met in September 2006 and married in Kabul on 13 September 2010. The delegate notes the applicant has previously lodged Partner visa applications on 31 January 2011 and 13 May 2012 that have been refused. The delegate said it considered the evidence provided with the current application and information previously provided to the Department. The delegate noted documents purportedly issued by the Kunduz Hospital certifying the death of the applicant’s first wife were verified as not belonging to the Hospital.  Further, verification checks conducted by the Department through the Afghanistan Ministry of Interior confirmed the applicant’s first wife was alive and residing with the applicant and their seven children.

9. Additional evidence was provided to the Tribunal:

   i.letter from the Azizi bank confirming the joint account opened 18 December 2017;

   ii.additional photographs;

   iii.a translated lease agreement;

   iv.receipt for the purchase of a car;

   v.form 888 statutory declarations from the sponsor’s sisters, Sanna Noory and Cristina Rahimi; the sponsor’s brothers-in-law, Masoud Rahimi and Faiq Noory; and the sponsor’s brother, Michael Ezedyar;

   vi.five personal statements by video;

   vii.a video of a ceremony;

   viii.statements from the sponsor and applicant; and

   ix.a written submission from the representative.

10. After the hearing the Tribunal requested, and received, the Department’s earlier files in respect of the Partner visa applications from 2011 and 2012 in order to view the information previously given to the Department, referred to by the delegate.

11. The issue in the present case is whether the applicant and sponsor have a mutual commitment to a shared life together to the exclusion of all others.

    Whether the parties are in a spouse or de facto relationship

12. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

13. ‘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: s.5F(2)(a).

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant and sponsor claim to have married on 13 September 2010. The decision record of the delegate indicates a marriage certificate issued by the Afghanistan Supreme Court was provided to the Department with an earlier visa application on 13 May 2012. The delegate was satisfied that the applicant and sponsor are married under a marriage that is valid for the purposes of this Act.

15. The applicant has consistently claimed that his first wife passed away on 8 September 2007. The delegate’s decision records the applicant has been unable to provide a verifiable death certificate. The Department attempted to verify information provided by the applicant about his first wife’s death but the Kunduz Hospital said it had no record of the claimed death and a medical report/certificate confirming the death had not been issued by that hospital. A subsequent site visit arranged by the Department indicated the applicant continued to live with his first wife, a teacher, and their seven children.

16. The Tribunal acknowledges the representative’s submission that it is common for verification checks in Afghanistan to prove non-conclusive, however in this case the check was not inconclusive, as the hospital denied issuing the confirmation of death.  

17. The representative further submits that the Kunduz Hospital was destroyed in October 2015 exacerbating any ability to further verify the death certificate.

18. The applicant provided the Department a number of statements from the applicant’s first wife’s family and his family who claim to have been present at the funeral of his first wife. The applicant provided the Department a statement from the preacher at the mosque at which his first wife is buried, along with photographs of his first wife’s grave and headstone.   

19. Five witnesses provided video statements to the Tribunal. Four of those statements were not in English and have not been translated and the Tribunal attributes them no weight. The applicant’s son provided the fifth video statement in English. The applicant’s son states his mother, the applicant’s first wife, is deceased. The applicant’s son was not made available for the Tribunal hearing and the Tribunal did not test his evidence. The Tribunal gives the video evidence of the applicant’s son limited weight.

20. The Tribunal notes the various written statements of the families of the applicant and his first wife confirming attendance at the wife’s funeral were not provided to the Department with his earlier Partner visa applications.

21. The applicant has provided no further independent evidence about his wife’s death than that which has previously been given to the Tribunal. Media records accessed by the Tribunal on the Internet confirm the bombing and destruction of the Kunduz Hospital in October 2015. The Tribunal expects there are no further avenues for the applicant to establish by independent documentation that his wife is deceased.

22. The applicant claims to have six children by his relationship with his first wife. Two of his children remain in his care and are recorded on this application as non-migrating dependents. The Tribunal notes the migration agent’s submission dated 25 August 2016 that the he was advised by the applicant that his mother, sister and five children went missing. The delegate was concerned that the applicant had failed to explain how two of his children were currently residing with him when he claimed five of his six children had gone missing.

23. The Tribunal reviewed the earlier Partner visa application files provided by the Department. An undated file note at Folio 301 of the Department’s file OSF2011004111, which appears to have been recorded prior to the delegate’s decision on 17 January 2012, says the applicant’s first wife is alive, working as a teacher and living with her husband (the applicant) and their four daughters and three sons. The Tribunal could locate no other reference in the Department’s files that the applicant has indicated he had anything other than six children from his relationship with his first wife. The applicant’s evidence at hearing was that his mother, sister and four children went missing and he denies he and his first wife have seven children. The Tribunal considers that the migration agent’s submission of five children going missing was a mistake by the migration agent. The Tribunal accepts the applicant’s evidence as to the composition of his family.

24. The Tribunal has carefully considered the evidence provided. The Tribunal prefers the independent evidence obtained by officials engaged by the Department that the documents provided by the applicant certifying his wife was deceased are not authentic. The Tribunal is not satisfied that the applicant’s first wife is deceased and it follows that at the time of his wedding to the sponsor he was not widowed. There is no evidence before the Tribunal that the applicant divorced his first wife.

25. The Tribunal finds that the applicant was married to his first wife when he married the sponsor on 13 September 2010.      

26. On the evidence, the parties are not 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 parties in a de facto relationship?

27. As the visa applicant and review applicant are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a married relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. 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).

28. 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 visa applicant’s and review applicant’s 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.

29. The Tribunal has considered the matters contained in r.1.09A(3).

30. The Tribunal has taken into account the evidence relevant to the financial aspects of the relationship including the extent of pooling of financial resources and any sharing of day-to-day household expenses.

31. The delegate placed substantial weight on the lack of documentary evidence showing regular financial remittances between the parties. The sponsor provided further receipts showing occasional money transfers from 2011. The amounts transferred between the parties are irregular and of reasonably small amounts. The sponsor gave oral evidence that typically she does not remit money to Afghanistan or vice versa because she travels on a regular basis. The Tribunal notes the parties are geographically separated and would have their own day-to-day expenses making the sharing of day to day household expenses less relevant than would be the case of a married couple living together.

32. The sponsor gave evidence that when she is in Afghanistan they share expenses such as food and travel expenses. The parties are joint owners of a motor vehicle in Afghanistan purchased on 11 May 2015. The parties are joint holders of a mortgage/lease on the property in which the applicant resides.

33. The Tribunal gives the financial aspects of the applicant’s and sponsor’s relationship some weight in favour of the existence of a de facto relationship.

34. The Tribunal considered the nature of the applicant’s and sponsor’s household arrangements. The sponsor resides with the applicant, in the residence of which she is a joint tenant, when she is in Afghanistan. She usually does the cooking, cleaning and washing. The applicant helps her when they have a party or invite people to their home. The applicant is very busy working full-time and the sponsor does the majority of the household maintenance. They enjoy doing the shopping together. The applicant’s children are almost adults and are not listed as migrating dependents because they have ongoing studies in Kabul.

35. The Tribunal gives the nature of the applicant’s and sponsor’s household, when they are not geographically separated, some weight in favour of the existence of a de facto relationship.

36. The Tribunal considered the social aspects of the applicant’s and sponsor’s relationship.

37. The applicant has provided a number of photographs showing the applicant and sponsor together and with various friends and family. The applicant and sponsor have travelled together and shared accommodation when they travel. They have been required to produce their marriage certificate to the Iranian Embassy, the Indian Embassy, and to airport security at Kabul airport. Each of the applicant’s and sponsor’s referees declares they know the applicant and sponsor to be a couple.

38. The Tribunal is satisfied that the applicant and sponsor represent themselves to other people as being in a relationship with each other; their friends and acquaintances consider them to be in a relationship with one another and they plan and undertake joint social activities together.

39. The Tribunal gives the social aspects of the applicant’s and sponsor’s relationship some weight in favour of the existence of a de facto relationship.

40. The Tribunal considered the nature of the applicant’s and sponsor’s commitment to each other.

41. The applicant and sponsor first met in 2006. They have been in a partnered relationship for around 10 years. The sponsor has travelled to Afghanistan frequently since 2009, often staying for periods of more than a month, during which time she lives with the applicant. They speak regularly by electronic media providing each other companionship and emotional support although being geographically separated. They see their relationship as long-term.

42. Notwithstanding that the Tribunal is not satisfied that the applicant’s first wife is deceased, the Tribunal notes that the applicant and sponsor have maintained their claims consistently since 2011. The Tribunal is satisfied that the applicant has not had a relationship with his first wife since his marriage to the sponsor in 2010.

43. The Tribunal gives the nature of the applicant’s and sponsor’s commitment to each other some weight in favour of the existence of a de facto relationship.

44. Having regard to the totality of the evidence and the findings above, the Tribunal is satisfied that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of others; their relationship is genuine and continuing; and they do not live separately and apart on a permanent basis.

45. The applicant and sponsor have recorded different parents on the visa application contained on the Department’s file. There is nothing to suggest that the applicant and sponsor are related. The Tribunal is satisfied the applicant and the sponsor are not related by family.

46. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time the visa application was made.

    Are the additional criteria for a de facto relationship met?

47. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

48. The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: r.2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

49. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement.

50. The applicant and sponsor were married to each other in 2010. The Tribunal finds that marriage not to be valid, however accepts that they have been in a de facto relationship with one another for at least 12 months.

51. Accordingly, the Tribunal is satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.

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

53. 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

54. 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.

    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).