HOWLADER (Migration)

[2024] AATA 865

HOWLADER (Migration) [2024] AATA 865 (18 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Md Ruhul Amin Howlader

VISA APPLICANT:  Mrs Rokeya Akhter

MissNusrat Akhter Ripty

REPRESENTATIVE:  Mr Mohuiddin Ahmed (MARN: 0963102)

CASE NUMBER:  1930219

DIBP REFERENCE(S):  BCC2018/1930991 BCC20181930991

MEMBER:Wan Shum

DATE:18 April 2024

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 18 April 2024 at 1:40pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country – small wedding before sponsor’s departure – limited evidence of financial, household and social aspects of relationship and nature of commitment while living in different countries – financial support, communication and two visits – age gap – length of relationship, consistent evidence and knowledge of each other’s family and health – member of family unit child not included in review application by representative’s error – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15(2), Schedule 2, 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 (the Act).

2. The first named visa applicant (the visa applicant) made a combined application for the Partner (Provisional) (Class UF) and Partner (Migrant) (Class BC) visas on 3 May 2018 based on her relationship with the review applicant. She included her daughter as a migrating family member. At that time, Class UF contained Subclass 309 (Partner (Provisional) and Class BC contained Subclass 100 (Partner (Migrant)). The criteria for the grant of the visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Relevantly in this case, one of the primary criteria for the Subclass 309 visa that must be satisfied by the visa applicant is that she is the spouse or de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Her daughter needs to satisfy the secondary criteria.

3. The delegate did not consider that the evidence and information provided was sufficient to demonstrate that the visa applicant is the spouse, as defined under s 5F of the Act, or de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen and refused to grant the Subclass 309 visa. Her daughter was found not to be a member of the family unit of a person who holds a Subclass 309 visa. The Subclass 100 visas were refused because neither held Subclass 309 visas.

4. The review applicant sought review of the decision to refuse to grant the Subclass 309 to the visa applicant and was represented in relation to the review. The visa applicant’s daughter’s details were not included on the application form for review. However, the Tribunal accepts that this was an error made by the representative and that they had intended to include the visa applicant’s daughter when seeking review of the decision to refuse to grant the Subclass 309 visas.

5. The review applicant appeared in person before the Tribunal on 21 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by videoconference and Ms Mst China Khatun, the aunt of the visa applicant, in person. The Tribunal was assisted by an interpreter in the Bengali and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The visa applicant is a Bangladeshi national, born in February 1981. She applied for the visa on the basis of her relationship with Mr Md Ruhul Amin Howlader, the sponsor, born in Bangladesh in January 1952. She included Miss Nusrat Akhter Ripty, her daughter from her first marriage, as a member of her family unit. Her daughter was born in August 2007.

8. The sponsor first entered Australia in December 2000 holding a Special Category visa for New Zealand citizens. He became an Australian citizen in February 2006.

9. On the visa application and sponsorship form, it was claimed that the parties had first met in October 2010 at New Market, Dhaka. The details provided reflect that the sponsor had previously been married to Fatema Jahan in December 2007 and that the visa applicant’s marriage to Mhd Rizon Rahman ended in divorce in April 2011. They claimed to have committed to a life together on 14 October 2016.

10. The parties provided evidence that they married on 28 October 2016 according to Bangladeshi Muslim Sharia Law.

11. The sponsor was interviewed by an Immigration officer by phone on 3 September 2019. After considering the evidence before the Department, the delegate refused the application on 15 October 2019 finding that cl 309.211(2) was not met.

12. Various documents were submitted with the application and subsequently in support of the existence of a married relationship.

13. After considering the evidence before the Department, the delegate refused the application on 22 February 2019 on the basis that cl 309.211(2) was not met.

14. 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. The issue in the present case is whether the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

15. In the present case the visa applicant claims to be the spouse of the sponsor who is an Australian citizen.

16. ‘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.

    Whether the parties are in a spouse or de facto relationship

    Are the parties validly married?

17. Only parties that are validly married may be considered to meet the requirements of a married relationship. The parties provided a copy of a marriage certificate issued by the Republic of Bangladesh reflecting that the marriage was solemnized and registered on 28 October 2016 by the Office of Muslim Marriage Registrar and Kazi, Government of the People’s Republic of Bangladesh. A copy of a translation of a Nikah Nama (an Islamic marriage contract) states that the marriage between them was contracted on the same date. The Tribunal accepts that the sponsor and visa applicant married on 28 October 2016 according to Bangladeshi Muslim Sharia Law.

18. 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?

19. The Tribunal has considered each matter in reg 1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.15A(2) as set out below.

20. On review, the sponsor provided a detailed statement in which he addresses each of the matters in reg 1.15A(3)(a), (b), (c) and (d). In his statement, he makes specific reference to the condition of marriage set out in the "Nikah Nama" that the husband must bear the wife's sustenance expenditure including food, clothing, living accommodation, sickness treatment and others as necessary.

21. During the hearing, the sponsor provided some background information and explained that after his divorce from his first wife in December 2007, he was feeling lonely and had been looking for a partner on the internet but was not successful. When he was out of work one year, he returned to Bangladesh to help a friend who was setting up a consulting firm, from October 2008 to October 2009. Then in 2010, he returned to Bangladesh to look for a woman to marry. The sponsor had come to know Mst China Khatun when he was working in the consulting firm, and she showed him a photograph of the visa applicant and gave him her phone number. He phoned and invited her to meet him at a restaurant, but she wanted to meet at a public place, so they arranged to meet at Dhaka New Market and sat down at a café with Mst China Khatun, who turned out to be the applicant’s aunt, although he did not know they were related at the time. The sponsor decided to propose, however, the visa applicant said she would need some time to think about it. He understood this to indicate that she was declining his proposal and he returned to Sydney and said he did not give the visa applicant any more thought and tried to meet someone on a Russian website but that was unsuccessful.

22. After the company he was working for liquidated in around 2015, he was encouraged by his friends to go travelling and explore. So, he went to the Himalayas for about 6 months in 2016 and at the end of his travels he went to Dhaka. He contacted Mst China Khatun again and she told him to contact the visa applicant as she still had not remarried and indicated that she would be happy to hear from him. The visa applicant came and met him on 14 October 2016 with her aunt, again at the Dhaka New Market, and this time she told him that she had a child and said that if he accepted her child she would accept his proposal, which he did. The sponsor explained that the marriage had to be arranged quickly because the date on his return ticket to Sydney was approaching. They had to arrange a marriage registrar, a Kazi priest under Sharia law, and together they did the “marketing”, which it was explained refers to shopping for the dress and jewellery for the wedding. There were about 12 to 15 guests in total – mostly the visa applicant’s extended family members, but not her mother, and his second brother, third brother and youngest brother who came with his son. The sponsor explained that his second brother’s wife was in America at the time and the youngest brother’s wife did not come because she had a problem with her retina. The visa applicant explained that her mother did not attend as there was nowhere for her mother and daughter to stay in Dhaka, but they came shortly after the marriage when she moved into bigger accommodation on the sponsor’s brother’s land. The sponsor returned to Australia 3 weeks later and started looking for work. They claim to have maintained contact using their phone devices and then in 2023 and 2024 the sponsor returned to Bangladesh to visit her.

23. In respect of the financial aspects of the relationship, the parties gave evidence that the visa applicant has had no income from employment since November 2016 when she lost her job as a seamstress. The sponsor himself is no longer working and is in receipt of pension payments from Centrelink. He provided evidence of working at Opus International Consultants (Australia) Pty Ltd in 2018 but told the Tribunal that he retired in November 2021 and, since then, has been receiving the aged pension. He provided evidence that he declared he was married to Centrelink.

24. The information reflects that there is no joint bank account, but the sponsor claims to be the nominee of the visa applicant’s bank account in Bangladesh. The visa applicant has been named as one of the beneficiaries of the sponsor’s super account.

25. The sponsor states that since the date of their marriage, he has been regularly sending money to the visa applicant through a financial services agent. The money is received into her bank account. The evidence reflects that the sponsor has remitted approximately Tk 355,000 in 2018 which is equivalent to AUD 5,462.00; Tk 638,000 in 2019, which is equivalent to AUD 10,000; Tk 307,000in 2020, which equivalent to AUD 5,000; TK 269,000 in 2021 and TK 364,000 in 2022. He further claims that he provided money in person when he visits her in Bangladesh. He added that he has arrangements with his younger brother Md Ahiduzzaman Howlader who lives close by and can lend money to her in emergencies. In terms of the amounts of money given to the visa applicant, the sponsor claims that after they married and he returned to Sydney, he had borrowed 1.7 lacs taka from his younger brother and given two lacs taka (200,000) to the visa applicant. He claims he paid his brother back in December 2018, which is confirmed by his brother in writing. He adds that in 2022, he visited the visa applicant for three months and arranged a pay order of Tk 850,000 to her account and during his visit in 2023, he arranged a pay order of Tk 400,000 to her account.

26. The sponsor adds that he has paid for the visa application and associated migration fees and also paid the lawyer's fees for her daughter’s custody which was gained through a long court case. The sponsor claims that he also paid for the visa applicant to see two specialists for medical treatment during their trip to India from 18 March to 12 April which amounted to Tk 100,000.

27. In respect of sharing of day-to-day household expenses, the typical evidence of household expenses in the form of bills or receipts has not been provided. The evidence before the Tribunal based on the sponsor’s movement records reflect that he could only have spent short periods of 2 to 3 months at a time in Bangladesh. The parties claim that they have lived together whenever the sponsor returned to Bangladesh and have stayed in a tin shed on the sponsor’s brother’s land, where the visa applicant has been living since October 2016. It appears that this arrangement was initially made on a temporary basis until the visa was granted. However, following the visa refusal, she has been living there with her daughter on a rent-free basis since October 2019.

28. There is no evidence of joint ownership of assets or joint liabilities; nor are there any legal obligations owed to the other party.

29. They are hoping that the visa applicant will work and earn money as a beautician, with the sponsor indicating in his statement either in Dhaka or Sydney, although there is no evidence that she has worked in Dhaka since their marriage. On the evidence presented, the visa applicant is financially dependent on the sponsor and, noting their individual circumstances leading up to their marriage, the Tribunal accepts that their financial circumstances are as claimed. While the evidence of joint finances is limited, given they usually reside in different countries and the applicant has lived on the sponsor’s brother’s property since their marriage, the Tribunal considers that the transfers of money from the sponsor to the visa applicant are reflective of a married relationship.

30. In respect of the nature of the household – the parties do not currently live together as the visa applicant lives in Bangladesh, living in a tin shed on the sponsor’s brother’s land and the sponsor lives in a boarding house in Sydney, Australia. The sponsor’s claim is that every time he returns to Bangladesh, he lives with the visa applicant as a married couple. They claim that the visa applicant does the household chores and the cooking, with the sponsor helping out in the kitchen, and they like to go shopping together for food and groceries. According to the sponsor’s movement records, he has been outside Australia for around 7 months since returning to Australia following their marriage. In total, he claims to have spent just under 8 months with the visa applicant. There are no children of the relationship, but they claim that the sponsor has some responsibility for the care and support of the visa applicant’s child who will be 17 this year. The sponsor has 3 children from his first marriage, born in 1983, 1985 and 1987 who all live in Sydney, but other than his daughter, he does not seem them regularly. The Tribunal accepts that the evidence in respect of this circumstance reflects that of a married couple who live in separate countries.

31. In terms of the social aspects of the relationship, the parties claim to have met through the visa applicant’s aunt who gave evidence at the hearing in support of their relationship. They appear to have represented themselves to other people as being married to each other, with the wedding attended by a small number of people including the sponsor’s 3 brothers and some relatives of the visa applicant. In terms of the concerns noted regarding the small number of people who attended, the visa applicant explained that the marriage was both of theirs second marriage and the sponsor explained the short timeframe between the proposal offer and marriage because of his upcoming return flight to Sydney. The Tribunal is prepared to accept that in these circumstances, the cultural norms of a large wedding were not followed and does not consider that this of itself undermines the genuineness of their marriage. The parties provided declarations made in Bangladesh by the sponsor’s younger brother, and a childhood friend of the sponsor, which confirm that the sponsor informed them of his marriage to the visa applicant. There are also Form 888s from the visa applicant’s aunt, who introduced the parties, as well as one from the sponsor’s friends and a neighbour in Australia who have attested to being aware of the visa applicant and believing that they are in a genuine relationship. None of the sponsor’s children who live in Australia have met or spoken to the visa applicant yet, but the sponsor’s daughter has provided a statutory declaration following the hearing indicating that she knows of her father’s marriage, that his wife has a 16 year old daughter, and her father has been financially supporting them.

32. There are photographs of the visa applicant and sponsor at their wedding and travelling together. They gave evidence that they have travelled to the sponsor’s home village of Barisal in Bangladesh in 2019 and 2022, and to India in 2023.

33. The Tribunal accepts that the sponsor has declared to Centrelink and on his tax returns that he was married.

34. The sponsor and visa applicant gave consistent evidence that reflected a knowledge of each other’s family and each other’s health conditions. The visa applicant displayed a knowledge of the sponsor’s relationships with his children, even though she herself has never met or spoken to them. Although the visa applicant was not able to give details of the qualifications held by the sponsor at the Departmental interview, the Tribunal notes that she was aware of the countries in which he studied and his occupational field of engineering. Noting that she herself had only completed Year 8, the Tribunal does not consider that her response is reflective of a lack of knowledge of the sponsor’s educational history.

1. The Tribunal considers that the parties have presented themselves as being in a genuine, married relationship.

2. In respect of the nature of their commitment to each other – the parties have been married for nearly 8 years now. In that time, they have spent in total around 8 months living together on separate occasions when the sponsor has travelled to Bangladesh. The visa applicant has never been to Australia. There is evidence that they had maintained regular contact via messaging on their mobile phone devices using applications like Viber, IMO and WhatsApp and by video calls. Some of the messages from the sponsor to the visa applicant reflect that he sent messages to the visa applicant stating “your insincerity is rampant” on 12 August 2022 and “I can be out of your life today” on 17 August 2022. But given their continued communications and his 2023 visit, it appears that these issues were overcome. During the hearing, the parties gave evidence that they wish to live together as a married couple with the visa applicant’s daughter in Sydney. The sponsor indicated he intends to rent an apartment in Sydney for them to live in together as a family. The visa applicant said that her daughter refers to the sponsor as ‘papa’ and that they have quite a good relationship.

3. Other circumstances – there is a 29-year age gap between the sponsor and visa applicant, with the visa applicant being close in age to the sponsor’s eldest child. The visa applicant explained that when they first met, she was not interested in his proposal primarily due to the age gap and thought she would be able to get a partner much younger than him. But then in 2016 when they met, she was happy as she had been alone for a while and was facing some problems as she had just lost her job and was finding it hard. It appears to the Tribunal that both parties have found companionship. The visa applicant explained that after her divorce, she had sent her daughter to live with her mother and brother in their home village while she remained in Dhaka to work. After her marriage to the sponsor, her mother brought her daughter out to Dhaka and her daughter has remained with her since. 

4. In respect of the requirement that they live together or do not live separately and apart on a permanent basis, the parties live in different countries, with the visa applicant in Bangladesh and the sponsor living in Sydney, Australia. They claim to have lived together whenever the sponsor returns to Bangladesh. The Tribunal considers that the evidence supports a conclusion that they do not live separately and apart on a permanent basis and finds s 5F(2)(d) is met.

5. Having considered all of the circumstances and evidence provided, the Tribunal accepts that the parties see the relationship as long-term. The Tribunals finds that they have a mutual commitment to shared life to the exclusion of others; are in a genuine and continuing relationship; and that, while they live in different countries, they do not live separately and apart on a permanent basis.

6. 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(2) and therefore satisfies cl 309.211. The Tribunal further finds that the visa applicant satisfies cl 309.221.

7. 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

8. 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

   Wan Shum
   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).