Hosain (Migration)

Hosain (Migration) [2024] AATA 2638 (13 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mohammad Zakir Hosain
VISA APPLICANT:  Miss Tangina Islam Labiba
REPRESENTATIVE:  Mr Mohiuddin Ahmed (MARN: 0963102)
CASE NUMBER:  2006865
DIBP REFERENCE(S):  BCC2018/5143318
MEMBER:Brygyda Maiden
DATE:13 May 2024
PLACE OF DECISION:  Melbourne
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 13 May 2024 at 4:55pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country – limited financial, household and social aspects of relationship while living in different countries – applicant living between sponsor’s parents and own parents – sponsor’s regular financial support – nature of commitment – sponsor’s multiple visits and parties’ travel to another country – sponsor’s mental health – supporting statements in similar wording – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221
CASES
Jayasinghe v MIMA [2006] FCA 1700
He v MIBP [2017] FCAFC 206
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 Home Affairs on 10 February 2020 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
The visa applicant, a 25-year-old national from Bangladesh, applied for the visa on 19 November 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 as the delegate had serious concerns regarding the genuineness of the parties’ relationship and was not satisfied that the parties’ relationship was “genuine, ongoing and exclusive to others.”
On 8 April 2020, the review applicant applied to the Tribunal for review, and in doing so attached a copy of the notification and decision from the Department, and a copy of his and the visa applicant’s passports.
The review applicant appeared before the Tribunal on 24 April 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The parties appeared together remotely from Bangladesh.
The review applicant was represented in relation to the review. The Tribunal was assisted by an interpreter in the Bengali and English languages
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is the spouse of the review applicant as defined under s 5F of the Act. The Tribunal has also had regard to evidence of events subsequent to the date of the visa application.[1]
[1] See Middleton J in Jayasinghe v MIMA [2006] FCA 1700 at [35]:
“This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.”
Are the parties in a spouse or de facto relationship?
Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen. A copy of the bio pages of the review applicant’s Australian passport were submitted to the Tribunal.
‘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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question 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 Department file contains a translated copy of the Nika Nama (marriage deed) between the parties indicating that their marriage occurred on 15 September 2017 as well as the Government of the People’s Republic of Bangladesh marriage certificate which indicates that the parties’ marriage was solemnised on 15 September 2017. 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). However, this evidence alone, does not in the Tribunal’s view, demonstrate a mutual commitment to a shared life together or a relationship that is genuine and continuing. The visa applicant does not meet 309.211(3) as the parties are already married.
Are the other requirements for a spouse relationship met?
Financial aspects of the relationship
The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.
Do the parties have any joint ownership of real estate or other major assets? Do the parties have any joint liabilities?
There is no evidence before the Tribunal that the parties have any joint ownership of real estate or other major assets or that the parties have any joint liabilities.
To what extent is there any pooling of financial resources?
The visa applicant’s statutory declaration dated 1 November 2019 and the review applicant’s statutory declaration dated 14 November 2018 on the Department file state that the parties have a joint account in Bangladesh. Consistent with this, the Department file contains a statement from 24 April 2018 until 22 October 2018. During that time there are no credits to the account. The review applicant told the Tribunal that the parties’ have a joint bank account in Dhaka. There is not much money into it, and he sometimes sends money to the visa applicant via the joint account (which takes one or two takes but obtains a better exchange rate) or via Ria (a money transfer service, but she gets the money straight away). Generally consistent with the review applicant’s evidence at hearing, post hearing the review applicant submitted an on demand statement from the parties’ joint account from 1 January 2017 until 30 April 2024. The Tribunal accepts that the parties’ have a joint bank account.
Does one person in the relationship owes any legal obligations in respect of the other?
The review applicant’s letter to the Tribunal dated 29 May 2023 states that the visa applicant is the only beneficiary of his superannuation account. A copy of the review applicant’s Rest beneficiary details was submitted to the Tribunal though it is not clear what date that the visa applicant became the review applicant’s superannuation beneficiary.
What is the basis of any sharing of day-to-day household expenses?
The visa applicant’s statutory declaration dated 1 November 2019 on the Department file states that at that time she was living with her parents in law, and they support her with accommodation and food, and if she requires any further financial support. The review applicant sends her money for day to day living.
According to the review applicant’s letter to the Tribunal dated 29 May 2023, the visa applicant has no income. The review applicant has borne all her expenses since the parties married on 15 September 2017. Prior to departing Bangladesh, in the last week of September 2018 after the parties’ wedding, the review applicant arranged money for the visa applicant so she did not run out of money until he resumed work in Australia and started sending money. The review applicant sends the visa applicant money. In 2020, 2021 and 2022 he sent her approximately $4,000 over the course of each year, and in 2023 he sent approximately $1,250. He has financed the purchase by the visa applicant of a “healthy lifestyle for herself, including the items for her personal stuff such as a mobile phone, a laptop computer and a tablet to go to internet for English language learning.”
The applicant submitted joint bills for curtain furnishings on 6 April 2022, numerous receipts were submitted in the visa applicant’s name though in the Tribunal’s view they do not demonstrate sharing of day-to-day household expenses, untranslated receipts were submitted in both parties names for 26 January 2022 and 4 February 2022, joint receipts for Kure Ghor Café & Restaurant in both parties name on 9 February 2022 and a receipt was submitted in both parties’ name for Beach Bistro on both 24 April 2023 and 26 April 2023.
Post hearing, receipts were submitted for various purchases in April 2024 though the receipts are mostly in the visa applicant’s name. Evidence of various purchases made by the visa applicant were also submitted in 2024 and some from the review applicant.
The review applicant told the Tribunal that the visa applicant did not work. His father does the shopping and pays for food related items. He sends money to the visa applicant and she buys everything else she needs. The visa applicant gave generally consistent evidence. She lives with her husband’s parents, has no personal income, and all of her personal expenses are met by her father in law. The review applicant purchases her clothes and make up.
The Department contains the following numerous regular money (but not necessarily monthly) transfers from 25 October 2017 until 11 September 2019, ranging between send amounts of $161.29 to $635.93. Copies of numerous money transfers were submitted by the review applicant for money sent to the visa applicant between 21 November 2019 until 25 March 2024. Amounts sent were up to $1,863.12 (which was sent on 12 December 2023 and was the highest sent during that period).
Conclusion on the financial aspects of the relationship
In relation to the financial aspects of the parties’ relationship, at the time of application and time of decision, the parties had no joint ownership of real estate or other major assets, no joint liabilities, and no real sharing of day-to-day household expenses as for the most part the parties live in separate countries – Australia and Bangladesh. At the time of application, no party owed any legal obligations to the other, but since then, the review applicant has made the visa applicant his superannuation beneficiary. The parties have had a joint account since prior to the time of application, but that does not show pooling of financial resources as the visa applicant does not earn any income. Nevertheless, since prior to the time of application until the time of decision there is evidence of the willingness of the review applicant to share his wealth with the visa applicant by way of regular money transfers.
Although there is some evidence of the financial aspects at the time of application there is more at the time of decision, for example, the visa applicant being the review applicant’s superannuation beneficiary. On balance, the financial aspects of the relationship at both times do not provide much support for the parties being in a genuine spousal relationship. However, the Tribunal acknowledges that the financial aspects are difficult for parties to establish when they reside in different countries for the most part and for this reason has given this matter neutral weight.
Nature of the household
The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.
Is there any joint responsibility for the care and support of children?
There is no evidence before the Tribunal that the parties have any children of their own or have any joint responsibility for the care and support of children.
What are the living arrangements of the persons?
At the time of application, according to the application for migration to Australia by a partner form on the Department file, the applicant was living at [Mirhajir Bagh Gandaria], Shyampur, Dhaka in Bangladesh and the review applicant was living at [Riverwood], New South Wales. The parties gave generally consistent evidence on their living arrangements at the time of application including the visa applicant being able to confirm the individuals that the review applicant resided with.
According to the review applicant’s letter to the Tribunal dated 29 May 2023, his household is in Sydney and the visa applicant’s is in Dhaka. At that time, the review applicant was living in “[Bashundhara Riverview], South Keraniganj Dhaka. I live in [Punchbowl] in a rented apartment. I pay rent of AUD 370 per week. My wife does not pay any rent for her living accommodation as she is currently residing as my parents’ place.” At the hearing, the parties gave generally consistent evidence on where they were living and with whom they lived with.
Is there any sharing of the responsibility of housework?
According to the review applicant’s letter to the Tribunal dated 29 May 2023, the parties share housework when the review applicant visits the visa applicant in Dhaka. The visa applicant cooks and cleans the review applicant purchases food and household goods.
Both parties gave consistent evidence that the parties’ shared the cooking prior to the hearing and gave consistent evidence as to what they cooked and who they cooked for. The oral evidence given by the parties tended to indicate that the when the review applicant is in Bangladesh with the visa applicant, he assists her with the housework. The Tribunal affords this a small amount of weight.
Conclusion on the nature of the household
In respect of the nature of the parties’ household, at the time of application and time of decision, the parties have no joint responsibility for the care and support of any children. The parties at both times reside in separate countries and were able to provide consistent evidence as to their living arrangements in respect of where they lived and with whom they lived. There is some evidence that the review applicant assists the visa applicant with housework when he is Bangladesh. On balance and at both times, there a small amount of evidence of the nature of the household. However the Tribunal accepts that the parties do not generally share a household as they reside in different countries for the most part. For this reason, the Tribunal affords this consideration neutral weight at both times.
Social aspects of the relationship
The Tribunal has considered evidence of the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.
Do the persons represent themselves to other people as being married to each other? What is the opinion of the persons’ friends and acquaintances about the nature of the relationship?
The Department file contains what appears to be photographs of the parties in wedding attire including with others. Post hearing, labelled wedding photographs were submitted of the review applicant’s mother receiving the visa applicant at home, and the review applicant’s mother receiving both parties.
The review applicant submitted a copy of the visa applicant’s Bangladeshi passport which lists the review applicant as her spouse.
The review applicant submitted copies of the visa applicant’s social media account which shows photographs of the parties together for posts in 2022, including but not limited for example, the parties together at Nobabjong, at a wedding party and at various other locations. Other posts were submitted for January, though the year is not clear. Additional posts were submitted of the parties having dinner together at the Green Lounge on 5 February 2022 and the parties together with others on 14 February 2022.
The review applicant submitted a copy of his tax return between 1 July 2021 and 30 June 2022 which showed the visa applicant as his spouse with $0 taxable income.
The Department file contains form 888 statutory declarations from:
a.Ms Afrin Moheny dated 23 October 2018. At that stage, she had known the visa applicant for 12 years and the review applicant for eight years. Her father is a close friend of the visa applicant’s father in Bangladesh. She and the review applicant usually speak daily on the phone and catch up on the weekends. She is aware the parties are in an arranged marriage and are committed to each other.
b.Mr Kamal Moinul, dated 23 October 2018. Who at that stage had known both parties for ten years. The review applicant’s family were his neighbours back in Bangladesh. The visa applicant married the review applicant who his friend from Sydney and they used to be flatmates. The parties are in a committed relationship, he has known about the relationship since the beginning, known the parties well for a long time and they share their feeling with him.
The Tribunal discussed with the review applicant limited evidence that had been submitted since the delegate’s decision as to the opinion of the parties’ friends as to the nature of the parties’ relationship, and afforded the review applicant additional time post hearing to submit evidence. Post hearing, the applicant submitted a:
a.letter dated 24 May 2023 from Mr Mohammad Echo stating that he is the review applicant’s friend, and has known him since 1992 as they went to school in Bangladesh together as children. He met the visa applicant in April 2017 on a visit to his family in Bangladesh, and the parties were married in Bangladesh on 14 September 2017. He and his family are in regular contact with the review applicant and with the visa applicant by internet. He believes the parties’ relationship is based on honesty and is genuine. Their marriage is legitimate and the parties are still together.
b.statement from the review applicant’s father Abdul Jabbar dated 30 April 2024 confirms the parties were married on 15 September 2017 in Dhaka. He, along with family members and with his friend (the visa applicant’s father) and her family members attended the parties’ wedding ceremony. He believes the parties relationship “…is based on love, respect and trust and is still continuing.”
c.statement from Mah Jabin Hossain dated 30 April 2024 who is the review applicant’s only sister. Ms Hossain confirms the parties’ were married on 15 September 2017. She attended the wedding with family members, relatives and friends. Her statement is very similar to the review applicant’s father’s. Parts of it are identical, for instance, she also believes the parties relationship “…is based on love, respect and trust and is still continuing.”
d.statement from Mr Tofazzal Hossain dated 30 April 204 who is the visa applicant’s father and confirms the parties married on 15 September 2017 and that he is the friend of the review applicant’s father. He along with family members as well as those from the review applicant’s family attended the parties’ wedding. He confirms that when the review applicant is in Australia, the visa applicant lives at his house for about two weeks a month and at the review applicant’s parents’ house for the remainder of the month. When the review applicant is in Bangladesh the parties’ live with them for about two days a month. This statement is also very similar to the statements above. Parts of it are identical, for instance, he also believes the parties relationship “…is based on love, respect and trust and is still continuing.”

At the time of application and time of decision, the parties represent themselves as being married to each other. The Tribunal affords this some weight. There is a small amount evidence from the parties’ friends and acquaintances and the Tribunal affords this a small amount weight as they do not provide much insight on the nature of the parties’ relationship.
Is there any basis on which the persons plan and undertake joint social activities?
The Department file contains photographs of the parties’ together at various locations and there are some photographs of the parties’ together with others.
The review applicant submitted a number of photographs of the parties together and with others. There are photographs of the parties’ at various locations, including but not limited to: swimming together, shopping together, on an aeroplane together, at the beach, at what appears to be events, at other people’s houses with others, in vehicles with others, having meals with others. Post hearing additional photographs were submitted, of the parties dining together and with others, the parties at various locations with others, the parties at various locations on their own and the parties on a plane together.
Boarding passes were submitted for both parties to travel from Cox’s Bazar to Dhaka on 26 April. Other boarding passes were submitted for both parties on 24 April though the destination part of the boarding passes is covered by the passport.
The applicant submitted the following e-ticket receipts for the review applicant:
a.30 August 2017, departing Sydney for Dhaka and returning on 30 September 2017;
b.17 April 2018, departing Sydney for Dhaka and returning on 28 April 2018;
c.14 June 2018, departing Sydney for Dhaka and returning on 7 July 2018;
d.28 May 2019, departing Sydney for Dhaka and returning on 22 June 2019;
e.9 August 2019, departing Sydney for Dhaka and returning on 20 August 2019;
f.19 January 2022, departing Sydney for Dhaka and returning on 8 February 2022. However, it appears that this flight was changed on 15 February 2022, to return on 22 February 2022;
g.27 June 2022, departing Sydney for Dhaka and returning on 25 July 2022. However, it appears that this ticket was also changed on 24 July 2022 for return on 5 August 2022;
h.28 March 2023, departing Sydney for Dhaka and returning on 30 April 2023; and
i.2 April 2024, departing Sydney for Dhaka and returning on 8 May 2024.
An invoice addressed to both parties who are listed as “guests” for accommodation at the Sea Peal Beach Resort and Spa at Bangladesh was submitted from 24 April 2023 until 26 April 2023.
Post hearing the review applicant submitted boarding passes showing the parties travelling from Bangladesh to Kathmandu - departing on 24 April 2024 and returning on 27 April 2024. The review applicant had given evidence during the hearing that he and the visa applicant were travelling to Nepal that evening. Post hearing, the review applicant submitted hotel vouchers for two separate properties in Nepal in both parties’ names for one room with a double bed. Photographs were submitted in front of each of the hotels that vouchers were provided for, at what appears to be the airport and in front of various landmarks, suspension bridges and other locations. It is not clear where many of these photographs were taken. Various receipts were submitted from Nepal as well as entry tickets to various attractions.
There is a small amount of evidence at the time of application (the Tribunal affords this a small amount of weight) and significantly more at the time of decision (the Tribunal affords this some weight) that the parties plan and undertake joint social activities.
Conclusion on the social aspects of the parties’ relationship
At the time of application and time of decision, there is evidence that the parties’ represent themselves as being married to each other. Although statements were submitted in support from the parties’ friends and acquaintances at both times, there were not many and they do not provide a lot of insight as to the nature of the parties’ relationship. At the time of decision, most of these were provided by family members and were very similar. There is evidence that the parties plan and undertake social activities. At both the time of application and time of decision, the social aspects of the parties relationship provide some support for the parties’ being in a genuine and continuing relationship.
Nature of persons’ commitment to each other
The Tribunal has considered evidence of the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support that the persons draw from each other and whether the persons sees the relationship as a long-term one.
What is the duration of the relationship?
According to the review applicant’s letter to the Tribunal dated 29 May 2023, the parties were introduced over the phone in July 2017 by the review applicant’s family, and both families agreed to the relationship and would support the parties’ marriage. The parties first met in person on 30 August 2017 at Hazrat Shanhjalal International Airport, the parties’ got to know each other, and gave consent to each other to marry. On 8 September 2017, the review applicant’s family and the review applicant proposed marriage to the visa applicant and her family, and the proposal was accepted. The parties married on 5 September 2017.
The visa applicant’s history of relationship statement dated 28 October 2018 on the Department file provides generally consistent information as does the review applicant’s statutory declaration dated 14 November 2018 on the Department file.
The Tribunal accepts that at the time of application the parties had been in a relationship and over a year, and at the time of decision the parties the parties have been in a relationship for almost seven years.
What is the length of time the parties have lived together?
According to the review applicant’s letter to the Tribunal dated 29 May 2023, he travelled to Bangladesh to see the visa applicant as well as family and lived together with the visa who lives in a resident at his parent’s place in Dhaka from:
a.17 April 2018 until 28 April 2018;
b.14 June 2018 until 7 July 2018;
c.28 May 2019 until 21 June 2019;
d.10 August 2019 until 20 August 2019;
e.from 2020 for a period of two years the review applicant could not travel due to the COVID-19 travel restrictions;
f.20 January 2022 to 22 February 2022;
g.27 June 2022 until 5 August 2022; and
h.28 March 2023 until 1 May 2023.
The review applicant told the Tribunal that he had travelled to Bangladesh on 24 April 2024 and the parties had been living together since and were living together at the time of hearing. The review applicant submitted confirmed airline reservations in support of his travel to Dhaka. The review applicant told the Tribunal that the visa applicant is the reason he comes to Bangladesh because they can’t spend time in Australia together, so he travels there as often as he can. He confirmed that since the parties married, they have lived together every time he has travelled to Bangladesh. They parties gave consistent evidence that they predominantly reside at the review applicant’s father’s house, but sometimes they go to the visa applicant’s parents’ house for a short period of time. Occasionally, they also stay at his sister’s house for a short period of time.
A statement from the review applicant’s father, Abdul Jabbar, dated 30 April 2024, confirms that when the review applicant is in Australia, the visa applicant resides at his house for two weeks per month and her father’s place the remainder of the time. When the review applicant is in Bangladesh, the parties live at his house for about 25 to 27 days of the month. The statement of Mah Jabin Hossain, the visa applicant’s sister, dated 30 April 2024 confirms that when the review applicant is in Australia, the visa applicant lives with her father two weeks a month and with her own father for the rest of the month. The parties stay at her place for about one or two days a month when the review applicant’s visits Bangladesh. The statement from Mr Tofazzal Hossain, the visa applicant’s father, dated 30 April 204 confirms that when the review applicant is in Bangladesh the parties’ live with them for about two days a month. When the review applicant is in Australia, the visa applicant spends about two weeks a month at his house and the remainder of the time at the review applicant’s parents’ house. The Tribunal affords this some weight.
What is the degree of companionship and emotional support that the persons draw from each other?
Chat records appear on the Department file which although appear to be to the review applicant, it is not clear whose phone they are from or the year. The chat records appear to be from September to November and from July to September though the year is not clear and for the most part they are not in English. Chat records to the visa applicant from 12 July 2018 until 3 November 2018 also appear on the Department file. For the most part they not in English. The Tribunal accepts the parties communicated during these periods.
The review applicant told the Tribunal that he did not have communication records from the time the parties’ commenced communication as he had changed phones three or four times since then. According to the review applicant’s letter to the Tribunal dated 29 May 2023, the parties communicate “every day as many times as we want to through social network call and messages such as Viber, IMO and WhatsApp.” The review applicant claims that the parties have communicated “almost every day since September 2017…”. Post hearing, a large bundle of chat records was submitted showing chats, voice and video calls between the parties. Often it is not clear what year the record pertains to. From the content of the chat, sometimes the year is ascertainable. The chat records are for the most part not in English. Call logs between the parties were submitted from March until May 2023. Records were submitted from October 2023 until April 2024 from the review applicant’s phone and from the visa applicant’s phone for the same period. What appears to be WhatsApp call and video logs were also submitted that show regular contact between the parties in March and April 2024. T
The parties were able to provide generally evidence as to each other’s hobbies and interests.
The review applicant submitted a letter dated 9 December 2022 from Amina Ahmed of PsychCentral, psychological and consulting services. The letter states:
Mr. Hosain initially applied for a partner visa for his wife on 19^th November 2018. Mr Hosain has been waiting since then. This delay in obtaining a visa for Mrs. Labiba has caused a significant amount of distress for Mr. Hosain. Currently he is experiencing symptoms in the severe range for Depression and Anxiety. He visits his wife in Bangladesh approximately every 3 months. This places a significant financial burden on him. Mr. Hosain is an account by profession, however, due to his frequent travel overseas his professional life is severely impacted. This has exacerbated his psychological symptoms
Mr. Hosain has no family in Australia. He is finding it very difficult to manage his symptoms without any support.
The review applicant used that letter as part of his application for priority processing which was denied by a representative of the Registrar of the Tribunal on 23 December 2022.
The review applicant told the Tribunal that the visa applicant supports him emotionally on a daily basis. He misses her and life in Australia is not easy as he works, and is not able to return home to see his wife. He told the Tribunal that he had surgery in July 2023 and was by himself. The visa applicant spoke to him regularly, telling him not to worry and that she would be there soon if she was allowed a visa. The visa applicant gave generally consistent evidence that she had supported the review applicant during the time he had the surgery. Post hearing, the review applicant submitted a histopathology report with a collection date of 28 August 2023, which was generally consistent with his oral evidence pertaining to the details in relation to the surgery.
The review applicant told the Tribunal that he had supported the review applicant almost every day. His mother in law had bi-pass surgery, and the visa applicant was crying whilst her mother was in hospital, and he supported her over the phone as much as he was able. The visa applicant gave generally consistent evidence in relation to the support the review applicant provided her whilst her mother was having surgery.
At the time of application there is little evidence as to the degree of companionship and emotional support that the parties draw from each other, and at the time of decision, the Tribunal accepts that the parties draw companionship and emotional support from each other and affords this some weight.
Do the persons see the relationship as a long-term one?
According to the review applicant’s letter to the Tribunal dated 29 May 2023, the parties plan to have a child that is born in Australia. The parties will rent a flat in Lakemba or Bankstown. The visa applicant will look for a job.
The review applicant told the Tribunal that as soon as the visa applicant is in Australia they are going to have a baby. They had been trying to have a baby whilst he was in Bangladesh, it had not happened, and his preference was that the baby be born in Australia. The parties wanted two children, preferably a boy and girl. If the visa applicant wants a part time job or to study, the parties will slowly save money, buy a house and start a small business. As he is a qualified account, he may begin his own practice. The review applicant gave similar evidence as to having children, the number of children, and the parties’ having their own home. She also mentioned possibly opening a restaurant.
The parties gave consistent evidence that if the visa applicant could not come to Australia, that the parties would either live in Bangladesh together or in another country.
Conclusion on the nature of the parties’ commitment to each other
In respect of the nature of the parties’ commitment to each other at the time of application the duration of the parties’ relationship was over a year, and at the time of decision it was almost seven years. At the time of application the parties had lived together on two occasions. At the time of decision, the review applicant had regularly travelled to see the visa applicant and always lived with her. There is little evidence at the time of application as to the degree of companionship and emotional support that the parties’ obtain from each other, however, at the time of decision there is evidence of companionship and emotional support that the parties draw from each other. At the time of application other than the parties’ getting married (which is generally considered a long term relationship commitment), there is limited evidence that the parties’ see the relationship as long term. However, at the time of decision the parties are still married, the review applicant has travelled frequently to see the visa applicant and the parties have consistent future plans if the visa is granted or if the visa is not granted. Although at the time of application, there was some evidence of the nature of the parties’ relationship, it did not provide strong support for the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life and living together and not separately and apart on a permanent basis. At the time of decision, the nature of the parties’ commitment provides support for the parties being in a genuine and continuing relationship, having a mutual commitment to a shared life and living together and not separately and apart.
CONCLUSION
On balance and after considering the reg 1.15A matters as discussed above, the Tribunal is satisfied that the requirements of s 5F(2) of the Act are met at the time the visa application was made and at the time of this decision. The Tribunal is satisfied that the visa applicant meets clauses 309.211 and 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.
Brygyda Maiden
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).

[2024] AATA 2638

13 May 2024

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