FAID (Migration)

[2017] AATA 2639

FAID (Migration) [2017] AATA 2639 (19 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr ARIF FAID

VISA APPLICANT:  Mrs NAGAT HUSSEIN FAID OMER

CASE NUMBER:  1617969

DIBP REFERENCE(S):  BCC2016/795903

MEMBER:Linda Holub

DATE:19 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the

·Regulations.

Statement made on 19 September 2017 at 3:06pm

CATCHWORDS
Migration – Partner (Provisional) (Class UF) – Subclass 309 – Sponsor’s second wife – Married relationship – Sponsor and visa applicant live in different countries – Ongoing financial and emotional support for each other – Credible witness

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

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 1 September 2016 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 applied for the visa on 22 February 2016 on the basis of her relationship with her 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. Relevantly to this matter the primary criteria include cl.309.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2)(a) because the delegate was not satisfied that the visa applicant and sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others and, that the relationship is genuine and continuing.

4. The review applicant appeared before the Tribunal on 13 September 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

5. The review applicant was represented in relation to the review by his 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

1. The issue in the present case is whether the spouse of the sponsor as defined by section 55F of the act and required by cl.309.211(2).

Whether the parties are in a spouse or de facto relationship

1. 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.

2. ‘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 husband and wife 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.

Are the parties validly married?

10) If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The sponsor has provided evidence that he is over the age of 18, was previously married and divorced on 10 January 2012[1].  The visa applicant has not been previously married.  She provided evidence that she is over 18 years of age[2] and there is no evidence of any impediment to their marriage which took place on 9 July 2015[3]. 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).

[1] DIBP file, folios 26 and 27.

[2] DIBP file, folio 23.

[3] DIBP file, folio 29.

Are the other requirements for a spousal relationship met?

11) The evidence before the Tribunal is that the review applicant was born in Sudan. He explained that he first came to Australia as part of a community sponsored band.  In 2007 he and his then wife obtained protection visas. He became an Australian citizen on 22 July 2010.  He and his first wife divorced in 2012. They have two daughters; born in 2000 and 2004. They live with their mother in Melbourne.  The review applicant’s parents and siblings live in Sudan.

12) The Tribunal was told that the review applicant went to Sudan in 2011 to visit his family. His wife, who is a cousin, came to welcome him a few days after he arrived. A short time later he and his family reciprocated the visit. They started to spend more time together and during this period he started to admire her, her character and behaviour.  He ascertained that she was not in a relationship with anybody else.

13) At this stage he had only separated from his wife and not yet divorced therefore it was not appropriate or possible for him to progress the relationship other than to establish that the visa applicant also had a strong interest in him.

14) Both the review and visa applicants explained that they had a discussion about a possible future together in a popular cafe called El Bashar.  After he left Sudan they stayed in contact with each other. He returned again in 2013 and during that visit the proposal was put to the visa applicant in the traditional, official manner required. This involved his brother and father visiting the visa applicant’s home and talking to her father. After the visa applicant’s father gave his consent it was then appropriate for them to agree to marry.

15) The review applicant returned in 2013 and they married on 29 August of that year. The Tribunal was provided with additional photos from the wedding[4].  The Tribunal heard from both parties that a celebration of between 100 to 150 people was held at the family home. Prior to that there was a lunch for the family and at approximately 4.00pm the family went to the mosque.

[4] AAT file, folios 64-93.

16) In forming an opinion whether the parties are in the married relationship and in considering whether they have a mutual commitment to a share life as husband and wife to the exclusion of all others, whether their relationship is genuine and continuing, and whether they live together or do not live separately and apart on a permanent basis as required by s.5F(2)(b)-(d), the Tribunal has had regard to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicants and review applicant’s household and their commitment to each other as set out in r.1.15A(3).

Financial aspects of the relationship

17) The Tribunal notes that as the visa applicant is overseas there is no real possibility of joint assets, or sharing of daily household expenses at this stage. The review applicant told the Tribunal he has been sending money to his wife on a regular basis provided evidence of his ongoing financial support of the visa applicant since 2012[5]^..  Even though the visa applicant is employed he has supplemented her income with these transfers.  Both the review and visa applicants explained that the money that the review applicant sends pays for the rent of the house that the visa applicant has shared with her father, her sister and her sister’s two children. They both stated that he would continue to support her family even if she obtained a visa to Australia.

[5] AAT file, folios 23- 55.

18) The Tribunal heard that on all occasions when the sponsor has travelled to Sudan he has paid for everything. In the context of cultural sensitivities, the Tribunal considers this to be understandable.

19) The evidence provided at hearing indicated that both parties had a reasonable understanding of each other’s financial positions and based on the oral evidence and the documentary evidence provided the Tribunal accepts that the review applicant has been providing the visa applicant with substantial financial support over a sustained period.

20) Based on the evidence before it, the Tribunal accepts that from around the time of application the financial aspects of the parties relationships suggests the existence of a spousal relationship that has continued to the present, the time of the decision.

Nature of the household

21) The review applicant resides in Australia and the visa applicant resides in Sudan. As they do not presently have a joint household this factor has been given less weight in consideration of whether the visa applicant is the spouse of the review applicant.

22) The Tribunal heard evidence that the parties have only spent limited time together due to the review applicant’s work commitments and child support obligations.  The couple spent time together as husband and wife after they married in 2013 and subsequently for five weeks in 2017 when the review applicant went to Sudan.

23) The Tribunal was told that the visa applicant’s family have made provision for them in their house to have their own room.  Both the review and visa applicant explained that the review makes little contribution to the sharing of household chores although he does help the visa applicant in limited ways.

24) During the extensive periods of separation the Tribunal heard that the applicants spoke regularly.  Documentary evidence was provided of the mobile credit purchases by the review applicant before being able to use of wifi[6].^.  Further, questions posed by the Tribunal to both the visa and review applicant demonstrated a deep and current knowledge of each other’s lives and circumstances.

[6] AAT file, folios94-124.

25) The Tribunal accepts the evidence as to the nature of the parties’ household is consistent with the relationship claimed.

Social aspects of the relationship

26) The Tribunal has considered the evidence in relation to the social aspects of the relationship including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

27) The evidence before the Tribunal is that the parties celebrated their wedding with family, friends and neighbours.  Both the review and visa applicant described the wedding in very similar terms.  Photographic evidence of the wedding was provided[7]^.

[7] AAT file, folios 64-93.

28) Both parties also talked about visits that they had made both in 2013 and 2014 to see other relatives in the city of Kassala.

29) The Tribunal discussed with the review applicant his considerations in regard to the relative isolation his wife might experience when she moves into a small country town with virtually no Sudanese community. 

30) Based on the evidence, the Tribunal was satisfied that the parties represent themselves to other people, including family and friends as being a couple.  The Tribunal decided that they did so at the time of the application and continue to do so at the time of the decision.

Nature of persons' commitment to each other

31) The Tribunal has considered the evidence in relation to the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together the degree of companionship and emotional support they draw from each other and whether they see the relationship is long-term.

32) The review applicant talked about the very frequent conversations he and the visa applicant have during which they talk about their day-to-day lives and the issues they are dealing with.  The review applicant talked about their plans to buy a house and to have a family. They recognised that at 42 years of age that this might be difficult but that his wife was very keen to have children. In her evidence to the Tribunal, the visa applicant confirmed this information.

33) The Tribunal was satisfied their financial and emotional support for each other is ongoing. Each appears to draw a significant amount of support and companionship from the other and each appears to see their relationship as long-term.

Anomalies in the visa application and interview

34) The delegate was concerned about the length of time the visa applicant and sponsor had spent together since they married and the amount of contact they had.  The Tribunal was told at hearing about the difficulties the applicant had obtaining work in Melbourne after he and his wife divorced. Through a friend he was able to obtain work in Leura, NSW and lived in Lithgow. He worked at Woolworths collecting trolleys. The Tribunal heard about the financial implications for the review applicant of paying child support for his children, his attempts to maintain contact with them and to establish a life for himself in the community that was quite isolating. The Tribunal put weight on these factors and accepted that it was difficult for the visa applicant to travel to Sudan as often as he would like to spend time with his wife. The discussion with both applicants at hearing gave the Tribunal sufficient comfort that their lives were very well known to each other through regular phone contact. The Tribunal is satisfied that the evidence provided is consistent with the particular circumstances of the relationship.

35) The Tribunal found that the review applicant gave evidence in an open and straightforward manner. Further the evidence of the review and visa applicants was consistent. Despite the delegate’s concerns at the time of the decision, the Tribunal is of the view that the further information made available to the Tribunal and the consistent oral evidence presented as well is the other supporting documentation was persuasive and the Tribunal is satisfied that the parties are generally committed to their marriage.

36) On the basis of the above the Tribunal finds that at the time of application and at the time of decision, the parties were not living separately and apart on a permanent basis and that they saw their future as a long-term one. The Tribunal is also satisfied that at time of application and time of decision that the parties continue to have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship is genuine and continuing.

37) Given these findings, 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.

38) Therefore the visa applicant meets cl.309.211 and cl.309.221.

39) 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

40) 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.

Linda Holub
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).