Hamid (Migration)

[2023] AATA 1909

Hamid (Migration) [2023] AATA 1909 (16 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdul Hamid

VISA APPLICANT:  Mrs Mst Tamanna Begum

REPRESENTATIVE:  Ms Riza Boncodin

CASE NUMBER:  1934156

DIBP REFERENCE(S):  BCC2018/4648365

MEMBER:Moira Brophy

DATE:16 June 2023

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 309.211of Schedule 2 to the Regulations; and

·Cl 309.221 of Schedule 2 to the Regulations.

Statement made on 16 June 2023 at 2:28pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Partner (Provisional)) –genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – validly married days after being introduced by parents –applicant living with sponsor’s sister in home country – sponsor’s visits and regular money transfers – shared religious and cultural values – clear, broadly consistent and credible oral evidence, documentation, photos and statutory declarations from family members – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 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 Home Affairs on 15 October 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 23 October 2018 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 (Cth) (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 on the evidence before it that the visa applicant was the spouse of the sponsor as defined and was not able to meet the requirements of the regulations.

4. The review applicant, Mr Abdul Hamid appeared before the Tribunal on 5 June 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mrs Mst Tamanna Begum. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

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

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Background

7. The review applicant is a 46-year-old male who was born in Bangladesh. He arrived in Australia on 3 May 2004 on a Tourist visa. He was granted an Employer Nomination (Subclass 121) visa on 24 August 2010. His parents, one brother and one sister live in the USA, one brother lives in United Kingdom and he has one sister in Bangladesh.

8. The visa applicant is a 28-year-old female who was born in Dhaka Bangladesh. Her father lives in the USA with the visa applicant’s older sister who is married to an American citizen, her mother, one brother and younger sister are in Bangladesh.

9. The review applicant and the visa applicant met on 7 March 2018 and were married on 12 March 2018. Their marriage was celebrated on 23 March 2018 and 24 March 2018.  They were introduced to each other by their parents. After they married, the review applicant returned to Australia and the visa applicant lives with the sister of the review applicant.

10. On 23 October 2018, the visa applicant lodged this application for a visa on the grounds she was in a genuine and continuing relationship with her sponsor.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the parties were in a genuine and continuing spousal relationship at the time of application, and whether they continue to be in that relationship at the time of decision.

    Tribunal proceedings

12. In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files and oral evidence provided by the visa applicant and review applicant at the hearing.

13. The parties gave coherent oral evidence about the circumstances in which they met, the development of their relationship and their current living arrangements. The Tribunal found them to be credible and was satisfied it could rely on their evidence in making findings of fact.

14. At the time of hearing, the parties gave clear and broadly consistent evidence as to their relationship. The Tribunal accepts the history of the relationship as given by the parties. The parties stated they were introduced by the review applicant’s sister in Bangladesh, but the initial arrangements were made by the parents of the visa applicant and the review applicant’s brother in America. The families were known to each other as they both had members of their family who were living in the USA. After marriage, they lived with the sister of the review applicant as is their custom.

15. The Tribunal was satisfied the parties had at all times since marriage considered themselves to be married to each other even while living in different countries. They share religious and cultural values. At the time of hearing, the parties were clearly distressed by their continued separation from each other which has been exacerbated by their fears and anxieties about the COVID-19 pandemic.

16. The parties agreed they have spent around one year living together since they married in 2018.

    Whether the parties are in a spouse or de facto relationship

17. 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.

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). In forming an opinion about these matters, regard must be had to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant and review applicant’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

19. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. There is nothing in the information before the Tribunal to cast doubt on the validity of the parties’ marriage on 23 March 2018 and the Tribunal accepts it is a valid marriage. Consequently, in the absence of any evidence to the contrary, the Tribunal finds that the parties are 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?

    Financial

20. The review applicant lives in an apartment he purchased in 2017 prior to being married. It is a two-bedroom apartment and he paid $415,000 for the apartment. He has a $190,000 mortgage and the repayments are around $1,300 per calendar month.  He is employed as an Uber driver working five to six days per week and he generally earns around $1,500 to $1,800 per week after expenses. While the review applicant is a trained chef and was working in that capacity for the last six years, he resigned in September as he was having difficulty getting extended periods of time off to travel to Bangladesh to spend time with the visa applicant. Being an Uber driver affords him more flexibility.

21. The visa applicant lives with the review applicant’s sister and her family. The visa applicant is presently not in paid employment. The review applicant sends her money on a regular basis to meet her household expenses and personal needs.

22. The parties have a joint bank account in Bangladesh. They have savings of around $15,000 in that account.

23. Both parties demonstrated a reasonable knowledge of each other’s employment and income. The Tribunal accepts with the parties living in separate countries it is difficult to provide evidence of shared finances.

    Nature of the household

24. The Tribunal accepts that since their marriage in March 2018, the review applicant and the visa applicant have lived together for about 12 months. The Tribunal accepts the parties stayed together as a couple in the periods since 2018. The Tribunal accepts the time the parties could have spent together has been adversely impacted by the prolonged period their application has taken and by the COVID-19 pandemic.

25. The parties gave consistent evidence that in the periods they have lived together, the visa applicant and review applicant share the household chores, the visa applicant does the cooking, and the washing. When together, they would do the shopping together and the review applicant would generally pay.

26. The parties gave consistent evidence about their plans to establish a joint household in Sydney and to live as a family with the children they hope to have. The Tribunal places significant weight on this aspect of the relationship given the periods of cohabitation since 2018 and the fact the visa applicant lives with the review applicant’s sister.

    Social aspects of the relationship

27. The review applicant provided statutory declarations in support from members of their respective families to the Department, and further statements attesting to the genuine nature of the relationship were provided to the Tribunal.

28. The Tribunal accepts from the photographic evidence, the supporting documentation as outlined above, and their oral testimony at hearing, that the parties have as a couple spent time with each other’s families. The family of the review applicant provide support to the visa applicant in Bangladesh. Their relationship as a married couple is known and accepted within their community.

29. The Tribunal accepts on the evidence before it that the parties present to their family and friends as a married couple.

    Nature of the persons’ commitment to each other

30. Given the concerns previously raised by the delegate, the Tribunal carefully considered the evidence as to the nature of the commitment of both parties to the relationship.

31. The Tribunal accepts the parties have been in a committed relationship since 2018. The Tribunal further accepts their shared religious and cultural beliefs are major factors in their perception of their relationship as being a lifetime commitment.

32. The Tribunal accepts their primary commitment is to their relationship with each other and that while a visa was a part of the equation, their commitment was not dependent on the visa being granted.

33. Based on all the evidence, the Tribunal finds the parties have a commitment to each other consistent with them being in a spousal relationship. The Tribunal found their evidence of their anguish at their continued separation from each other to be genuine and persuasive. There was no doubting their commitment to each other and to their marriage. They clearly wanted to be reunited to commence their married life in Australia.

34. Given the above findings, the Tribunal is satisfied that at the time the visa application was lodged and at the time of this decision, the parties are validly married, 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. The Tribunal finds that they intend to live together in Australia and that they therefore do not live separately and apart on a permanent basis.

35. Accordingly, the Tribunal finds that the visa applicant satisfies the definition of ‘spouse’ in s 5F(2)(a)-(d), and that the parties were in a spousal relationship at the time of application, and continue to be in a spousal relationship at the time of decision.

36. The review applicant is an Australian citizen.

37. Given these findings, the Tribunal is satisfied that at the time the visa application was made, and at the time of this decision, the parties were in a spousal relationship. The Tribunal finds that the visa applicant is the spouse of the review applicant and satisfies cl 309.211(2) and therefore cl 309.211. The Tribunal finds that at the time of decision, the visa applicant continues to satisfy cl 309.211.

38. 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

39. 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.

    Moira Brophy
    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).