HAKIMI (Migration)

HAKIMI (Migration) [2021] AATA 3898 (6 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mrs RAZIA HAKIMI
VISA APPLICANT:  Mr NAWROZ ALI HUSSAINI
CASE NUMBER:  1931561
DIBP REFERENCE(S):  BCC2018/4777974
MEMBER:Steven Griffiths
DATE:6 July 2021
PLACE OF DECISION:  Adelaide
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; and
·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 06 July 2021 at 9:47am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – prominent religious figure – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 309.211
CASES
He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 October 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant, Mr. Nawroz Ali Hussaini, applied for the visa on 30 October 2018 on the basis of her relationship with his sponsor, the review applicant, Mrs. Razia Hakimi. 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate determined that from the evidence presented the parties do not have a mutual commitment to a shared life and the applicant is not the spouse of the sponsor.
The parties were assisted by their registered migration agent, Mr. Besmellah Rezaee, of Beena Rezaee Legal & Migration.
The applicant was invited to appear before the Tribunal on 8 July 2021, but following a detailed review of the documented evidence received from the parties prior to this intended the hearing, the Tribunal determined that a decision could be made on the information provided without the requirement to hold a hearing.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file and the Tribunal file including information provided by the applicants prior to what had been an intended hearing.
ISSUE
The issue in the present case is whether the applicant is the spouse, as defined in s.5F of the Act, of the sponsor.
BACKGOUND OF THE EVIDENCE
Mr. Hussaini was born in Afghanistan in 1994. His parents are deceased, and his 3 stepbrothers, born 1970, 1975 & 1977, and sister and brother, born 1993 & 1999, live in Pakistan, Australia and Iran. He was a student in India at the time of applicant but now lives in Afghanistan.
Mrs. Hakimi was born in Afghanistan in 1997. Her parents, born 1969 & 1964, and 4 brothers and sister, born 1985, 1990, 1992, 1995 & 2000, all live in Australia. She arrived in Australia on 20/4/09 on a Humanitarian Visa and became an Australian citizen by grant on 17/9/14.
INFORMATION TO THE TRIBUNAL
Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-
Form 888 Statutory Declaration, Ms. Fatima Hussaini, friend of sponsor, 20/11/19
Messages between the parties, 8 & 9/12/19 and January, May & June (year not detailed)
Sponsor bank account, transactions, January 2019
Money Transfer, from whom not detailed, sent to Marziya, 14/8/19
Applicant Facebook messages, January, February & June 2018
Sponsor travel documents, 8/12/19 to 7/1/20 to India
Statutory Declaration, Mr. Mohammad Reza Hakimi, father of sponsor, 20/11/19
57 photos of the parties in India, December 2019 to January 2020
Parties joint train travel documents, December 2019
Parties Arrival Report of Foreigner in Individual House, 9/12/19
Parties joint names hotel bookings, India, December 2019
Sponsor E-Visa, 2019
Receipts for purchase of items, India, January 2020
Money transfers, brother of applicant to sponsor, 31/12/19 for $ 793
Ms. Zahra Moghaddami, Clinical Psychologist, report on sponsor, 18/4/21
Migration Agent submission, 2/7/21
Dr. Sarah Ahmad, Northern Clinic, report on mental health of sponsor, 9/6/21
Sponsor Statutory Declaration, 1/7/21
Mr. Esmail Hussaini, brother of applicant, Statutory Declaration, 1/7/21
Money transfers, sponsor to applicant - $ 206 on 26/6/19, $ 306.34 on 7/12/19, $ 205 on 21/7/20
3 documents on the Batchelor of Electrical Engineering course undertaken, and completed, by the applicant in India between 2017 & 2020
Certificate of Completion, Youth Entrepreneurship course in Afghanistan, by applicant, November 2020 to May 2021
10 Money Transfers by brother of the sponsor, in Australia, to his wife and sponsor in Afghanistan, August 2020 to June 2021
Household items purchased by brother of sponsor for the sponsor as a gift, 21/6/20
15 photos of wedding of parties
Photo of the parties prior to a Henna Night attended in Pakistan
5 photos of the Engagement of the parties celebration in Australia
18 pages of contact between the parties during 2020
Form 888 Statutory Declaration, Mr. Muhammad Ali Yousofi, friend of applicant, 30/6/21
Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?
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 applicant is the spouse or de facto partner of an Australian citizen or Australian Permanent Resident or an eligible New Zealand citizen.
The Tribunal accepts the documented evidence of the sponsor being an Australian Citizen by grant on 17 September 2014.
Whether the parties are in a spouse or de facto relationship
‘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?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
The Tribunal accepts the documented and photographic evidence of the parties marrying on 31/3/18 in Pakistan. There is nothing to suggest that the marriage is not valid. 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?
The Tribunal has considered the evidence relevant to the matters in r.1.15A. The Tribunal took into account the available documentary evidence contained on the Department’s file and the evidence provided to the Tribunal.
CLAIMS AND FINDINGS
Financial aspects of the relationship that must be considered include:-
(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 expense
The Tribunal accepts the documented evidence of the financial issues of the parties and determines at the time of the visa application and this decision they do not have joint ownership of real estate or other major assets.
The Tribunal determines from the documented evidence of the financial issues of the parties that at the time of the visa application and this decision, they do not have any joint liabilities.
The Tribunal accepts the documented evidence that the sponsor and applicant are students, with the applicant having completed an electrical engineering course and the sponsor undertaking a dental technology course, with both hoping to find work in these areas.
The Tribunal accepts the documented evidence of the Australian resident brother of the applicant providing the funds required for the travel by the sponsor, her sister and mother when they went to Pakistan for the wedding of the parties.
The Tribunal accepts the documented evidence of the Australian resident brother of the applicant providing the applicant, and sponsor since the wedding, with financial support to allow the applicant to have undertaken 4 years of study in India, and to provide funds to the sponsor when she was in India over late December 2019 / early January 2020 with the sponsor for the parties to use during their time spent together.
The Tribunal accepts the documented evidence of the Australian resident brother of the applicant intending to provide the applicant and sponsor with assistant to rent and furnish a home, purchase a car and provide work for the applicant when the parties are able to live together in Australia.
The Tribunal accepts that in the Afghan culture when a women marries she becomes the responsibility of her husband and his family, and for the period the applicant has been studying and not working he has been supported by his older brother who lives and owns a business in Australia and that family responsibility includes now the sponsor, and for this reason the older brother of the sponsor has provided financial support for her benefit.
The Tribunal accepts the documented evidence of the sponsor providing the applicant with money transfers of $ 206 on 26/6/19, $ 306.34 on 7/12/19 and $ 205 on 21/7/20.
The Tribunal accepts the documented evidence of the parties not having a joint name bank account and do not have a household to fund as they live in different countries and places little weight on this.
The Tribunal determines from the documented evidence that at the time of the visa application and this decision, none of the parties has a legal obligation to the other.
Nature of the household aspects that must be considered include:-
(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
The Tribunal accepts the documented evidence of the parties that they do not have children, while having jointly decided that they intent to have a large family.
The Tribunal accepts the documented and photographic evidence that the parties have lived together in Pakistan from 31/3/18 to 26/4/18 and in India from 8/12/19 to 7/1/20 when the sponsor left Australia to marry the applicant and then to spend time with him between the study requirements of both.
The Tribunal accepts the documented evidence of the time the parties have spent together in Pakistan was with family members and the household requirements were undertaken by their hosts, and that for the 30 days the parties were together in India they shared household roles and determines, at the time of this decision, the parties have shared responsibility for housework, while recognising the parties live in different countries and places little weight on this.
Social aspects of the relationship that must be considered include:-
(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
The Tribunal accepts the documented evidence of the older brother of the applicant, at that time being a resident of West Australia, travelling to South Australia at the request of the applicant to formally seek the approval of the sponsor and her family for the parties to marry.
The Tribunal accepts the documented evidence of an engagement and nikah celebrations in Australia, with the older brother of the applicant standing in for the applicant as he was in India and it was not possible to attend, on 6/2/18 with approximately 150 people attending.
The Tribunal accepts the documented and photographic evidence of the parties marrying in Pakistan on 31/3/18, with members of both their families in attendance and a large number of relatives and friends attending.
The Tribunal accepts the documented and photographic evidence of the contact the parties have with family and friends and determines, at the time of application and this decision, the parties represent themselves to other people as being married.
The Tribunal accepts the documented and photographic evidence that the parties families and their friends, at the time of the visa application and this decision, are extremely supportive of their marriage.
The Tribunal accepts the documented and photographic evidence that the parties have planned and undertook social activities in Pakistan prior to and following their marriage and while in India and determines, at the time of the visa application and this decision, the parties have planned and undertaken joint social activities, while recognising the parties live in difference countries and places little weight on this.
Nature of the commitment to each other that must be considered include:-
(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.
The Tribunal accepts the documented and photographic evidence of the parties first making contact in January 2018, with their families agreeing to the relationship and marriage and their marriage taking place in Pakistan on 31/3/18.
The Tribunal accepts the documented evidence that the parties have lived together in Pakistan from 31/3/18 to 26/4/18 and in India from 8/12/19 to 7/1/20, while recognising the parties live in different countries and places little weight on this.
The Tribunal accepts the documented evidence of the multiple times per day the parties are in contact with each other, with this level of contact occurring at all times during the relationship.
The Tribunal accepts the documented evidence of health professionals on the mental health issues of the sponsor, with the impact on her of the continued absence physically from her life of the applicant, her husband, and the support by the medical professionals for the husband of their patient to be allowed to live in Australia.
The Tribunal accepts the documented evidence of the parties of the support the parties have provided to each other and determines, at the time of application and this decision, a high level of companionship and emotional support is provided by each of the parties to the other.
The Tribunal accepts the documented evidence of the relationship and determines, at the time of application and this decision, the parties have an ongoing commitment to each other, the relationship and their marriage.
Any other circumstances of the relationship
The Tribunal notes, and respects, the very strong cultural and religious position put in the documented evidence of the parties and witnesses that since 31/3/18 they have been recognised as being married by all who know them and that the time they have spent together from that date is only permitted because they married.
The Tribunal accepts documented evidence that with the parents of the applicant being deceased, responsibility for the family rests with the older brother and it is this person, a resident of Australia who owns and operates his own business, has committed to providing the applicant and sponsor with the financial support required and in to future when the parties are living together in Australia.
The Tribunal accepts the documented evidence that the father of the sponsor is a prominent religious figure in Adelaide and within the cultural group of the parties and that he was to have been a witness providing evidence to the intended hearing of the Tribunal.
The Tribunal accepts the documented evidence of the mental health issues of the sponsor, noting that these have been diagnosed as being caused by the extended period of separation of the parties and the concern of the sponsor that her husband is not safe in Afghanistan.
The Tribunal considered all the evidence on the circumstances of the parties and determines the evidence supports a finding that at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a couple to the exclusion of all others, with the relationship genuine and continuing and they do not live permanently apart.
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.
Therefore the visa applicant meets cl.309.211 and cl.309.221.
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
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; and
·cl.309.221 of Schedule 2 to the Regulations
Steven Griffiths
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).

[2021] AATA 3898

6 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies