Hussain (Migration)

Hussain (Migration) [2022] AATA 256 (31 January 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Mohammad Hussain
VISA APPLICANT:  Miss Gulsoom Hussaini
REPRESENTATIVE:  Mr Rasheed Qasimi, Help Visa and Migration Services
CASE NUMBER:  2105725
DIBP REFERENCE(S):  BCC2018/366889
MEMBER:Michael Ison
DATE:31 January 2022
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 31 January 2022 at 11:10am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – validly married in home country – limited evidence of financial, household and social aspects of relationship while living in different countries – nature of commitment – limited education, illiteracy and cultural context – oral evidence of review applicant’s sister and submissions of representative – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 3, cl 309.211(2), 309.221
CASE
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 21 February 2021 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
Background
The visa applicant is Ms Gulsoom Hussaini who is 25 years-old and is a national of Afghanistan. Ms Hussaini is referred to as the visa applicant in these reasons for decision.
The review applicant is Mr Mohammad Hussain who is 26 years-old, is a national of Afghanistan and is an Australian Permanent resident. Mr Hussain holds a (Class BC) (Subclass 100) Partner visa which was granted to him as a secondary applicant on 31 March 2015 as part of his mother’s application for a Partner visa. Mr Hussain first arrived in Australia on 31 May 2015 as a 20-year-old. Mr Hussain is referred to as the review applicant in these reasons for decision.
On 22 January 2018 the visa applicant applied offshore for a Combined Partner (Class UF) (Subclass 309) visa and (Class BC) (Subclass 100) visa as the spouse of the sponsor, the review applicant. It is the refusal to grant the visa applicant that Partner visa that is the subject of this review.
The applicants first met in 2000 in Jaghori, Afghanistan and got married on 11 August 2016 in Nawrang Angori village, Jaghori District in the Ghazni province of Afghanistan.
In the visa applicant’s Partner visa application, the visa applicant declared she has not had any previous marriages or de facto relationships.
In the Sponsorship for a Partner form, the review applicant declared he has not had any previous marriages or de facto relationships.
At the time visa applicant applied for the Partner visa, the applicants were married and applied on the basis of the visa applicant being the spouse of the review applicant.
There is no evidence before the Tribunal that the review applicant and the visa applicant are related by birth, marriage or adoption.
The primary decision of a delegate of the Minister
The review applicant provided the Tribunal with a copy of the primary decision.
The visa applicant applied for the Partner visa on 21 January 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 (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 21 February 2021 on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied that the review applicant and visa applicant were in a genuine spouse relationship as that is defined under s.5F of the Act when taking into account the considerations set out in r.1.15A(3) of the Regulations.
The Tribunal hearing
The applicants appeared before the Tribunal on 20 October 2021 to give evidence and present arguments. The review applicant participated by video and the visa applicant participated by telephone. The Tribunal also received oral evidence from the review applicant’s sister Ms Fouzia Hussaini.
The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicants were represented in relation to the review by their migration agent, Mr Rasheed Qasimi of Help Visa and Migration Services. Mr Qasimi participated in the Tribunal hearing by video. Mr Qasimi is referred to in these reasons as the applicants’ representative or the representative.
The Tribunal hearing was held during the COVID-19 global pandemic when extensive restrictions on the movement and gathering of people were in place in Victoria and also other States. The Tribunal determined it was reasonable to hold the hearing by video and telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video and telephone. The Tribunal was satisfied the applicants, their representative, the witness, the interpreter and the Tribunal could satisfactorily see and/or hear and understand each other throughout the hearing. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments to the Tribunal.
At the commencement of the Tribunal hearing the Tribunal explained the role of the interpreter as an aid to communication and asked the applicants whether they had any objection to the use of the interpreter retained by the Tribunal. The applicants individually indicated they did not. The Tribunal explained to the applicants the determinative issues before the Tribunal, the Tribunal’s role and how the hearing would proceed including that the Tribunal is independent of the Department and is not bound by the delegate’s primary decision. The Tribunal also explained the role of the applicants’ representative during the hearing. The Tribunal informed the applicants that it would seek submissions from both of the applicants and their representative toward the end of the Tribunal hearing on any matter they considered relevant to the applicants’ review.
Pre-hearing submissions
The Tribunal received a submission dated 13 October 2021 on behalf of the applicants prior to the Tribunal hearing, with the following main documents attached:
·four-page written statement from the representative, undated;
·applicants’ social media records including messages and call logs, written in a language other than English and not translated for the Tribunal, from March to September unknown year;
·money transfers from the review applicant to the visa applicant, from November to December 2020; January, March to July and September 2021;
·the applicants translated and untranslated marriage certificate issued by the Supreme Court, Islamic Republic of Afghanistan on 29 August 2016;
·the visa applicant’s current Afghan passport, valid from 8 August 2021 to 8 August 2026;
·the visa applicant’s translated and untranslated Afghan National Identity card issued on 14 July 2021;
·miscellaneous photos of the applicants travelling together and their social gatherings as a couple in Afghanistan; and
·the visa applicant’s translated and untranslated Tazkira issued on 18 July 2016.
The Tribunal also engaged in other correspondence with the applicants and their representative in relation to administrative matters associated with this review.
Post-hearing submissions
The Tribunal received a submission dated 29 October 2021 on behalf of the applicants after the Tribunal hearing, with the following main documents attached:
·applicants’ social media records including messages and call logs, written in a language other than English and not translated for the Tribunal, from November to December 2016, January to December 2017, January to May 2018, August to December 2018, January to May 2019, June to July 2019, October to December 2019 and January to April 2020;
·six photos of the applicants together with various family members in Afghanistan;
·three photos of Ms Hussaini’s 2019 wedding showing the applicants in attendance at the wedding and in the company of other family members.
The covering email these photos were attached to named each person in each of the photos which was of assistance to the Tribunal.
Tribunal decision
The Tribunal has had regard to the oral evidence of the applicants and their witness, all of the information in the oral and written submissions provided to the Tribunal on the applicants’ behalf and to the information in the Tribunal’s file and the Department’s file provided to the Tribunal. The Department’s file included a copy of the visa applicant’s application for the Partner visa, the documents provided to the Department in support of that application and copies of communication between the Department and the applicants.
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 applicants are in a genuine spouse relationship as the term ‘spouse’ is defined in the Act, taking into account all the circumstances of their relationship including the considerations set out in r.1.15A(3) of the Regulations.
Whether the parties are in a spouse or de facto relationship
Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is a permanent resident of Australia.
‘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 visa applicant and the review applicant claim to have first met in 2000 in Jaghori, Afghanistan and were married on 11 August 2016 in Nawrang Angori village, Jaghori District, in the Ghazni province of Afghanistan. The review applicant has provided a copy of a marriage certificate for the marriage and the Tribunal accepts the applicants are validly married.
On the evidence before it, the Tribunal finds the applicants were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).
Background
The applicants’ representative provided the following helpful summary, supported by relevant documents, on the background to the applicants’ relationship and application for the Partner visa in the submission dated 13 October 2021 (errors in the original):
The primary visa applicant, Gulsoom Hussaini is originally from Jaghori district, Ghazni province in Afghanistan. She got married to the sponsor, Mohammad Hussain on 11 August 2016 in Angori village, Jaghori district, Ghazni, Afghanistan. The primary applicant and her husband lived together for more than two months in Jaghori after their marriage. They got married in the presence of their family members, friends, and relatives. They also travelled to Kabul when the sponsor was returning to Australia.
Since their marriage, the sponsor has visited the primary applicant twice in 2017 and 2019. In 2017, they travelled to Bamiyan province with some of their friends and spent some quality time together.
The Tribunal accepts this background, aspects of which are addressed in more detail in these reasons for decision below.
The evidence before the Tribunal, which the Tribunal accepts, is that the visa applicant is one of five children with two older sisters and two younger brothers who grew up in a rural village in Afghanistan, has not worked in paid employment, lives with a brother in Kabul while the rest of her family live in Herat, Afghanistan and until her marriage had not travelled outside of her village.
The evidence before the Tribunal, which the Tribunal accepts, is that the review applicant is one of four children with an older sister (who was married at the time of application for the visa in 2018), a younger brother and younger sister, Ms Hussaini (who married in 2019 after the visa application), lives with his parents and family in Melbourne, Australia and works as a painter.
The applicants’ representative submitted the applicants each have limited education and the review applicant is “illiterate and does not speak much English”. The Tribunal was mindful of the applicants’ levels of education and literacy when taking their evidence.
Key concerns in the delegate’s decision
The delegate of the Minister found in the February 2021 primary decision that the applicants were not in a spouse relationship under the migration law because:
·     During a February 2020 interview with Department officers the visa applicant was unable to state how often the review applicant sends her money, when he last sent her money or what the amount was that he sent her;
·     There were no receipts to support claims the review applicant financially supports the visa applicant;
·     During the Departmental interview the visa applicant said the review applicant might be working as a painter but she was not sure;
·     During a 2019 Departmental interview the visa applicant said the review applicant was not working but studying English and the review applicant said he had not told the visa applicant he was working because she had not asked and he did not have time to talk about it as he usually got home late, an explanation the delegate found improbable;
·     The wedding photos did not show the 150 to 200 guests the applicants claim attended their wedding;
·     During a Departmental interview the review applicant was asked why it took two years to lodge the Partner visa application to which the review applicant responded that his lawyer said he need to travel to Afghanistan to obtain more photos of the applicants as a couple, causing the delegate concern the wedding photos were staged for the visa application;
·     The applicants claim they did not attend any family or community events when the review applicant spent three months in Afghanistan in 2019, something the delegate found implausible;
·     The visa applicant did not know the name of the husband of her sister-in-law who is married (the visa applicant’s older sister), yet this person provided a statutory declaration in support of the applicants relationship;
·     Found the visa applicant’s answers to questions about why the applicants had not had any children yet to be evasive and to indicate the applicants have not discussed their future as a couple;
·     The visa applicant was unable to recall during interview how many times her husband had visited her in Afghanistan after their wedding and said she had not asked about the progress of her visa application; and
·     The applicants claim they met at school but the visa applicant was unable to name the school or what grades they were each in when they met and the visa applicant was evasive during interview about providing detail on how their relationship developed causing the delegate to form the view she was “unable to answer questions which might not have been on a rehearsed script”.
Are the other requirements for a spouse relationship met?
To be satisfied that the applicants are in a genuine spouse relationship the Tribunal must be satisfied each of the criteria set out in r.1.15A(3)(a), (b), (c) and (d) are satisfied and the Tribunal must consider any other circumstances of the relationship under r.1.15A(2).
Financial aspects of the relationship – including any joint ownership of real estate or other major assets; any joint liabilities; the extent of pooling of financial resources, especially in relation to major financial commitments; whether one applicant owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses.
The applicants do not claim to jointly own any real estate or other major assets, to have pooled their financial resources, to owe legal obligations in respect of each other or to share day-to-day household expenses. The applicants submit that the financial aspects of their relationship reflect that they have always lived in different countries.
The review applicant gave evidence that the house he lives in with his family is owned by him subject to a mortgage and if the visa applicant was in Australia her name would be added to the title. No documents were provided in support of this evidence, which the Tribunal gives modest weight.
The review applicant provided evidence, which the Tribunal accepts, of his regular and meaningful financial support of the visa applicant through money transfers. The Tribunal finds that this represents a, albeit limited, pooling of financial resources by the applicants and the Tribunal gives this some weight.
The Tribunal makes no adverse findings against the visa applicant in relation to the considerations of the joint ownership of assets, joint liabilities, legal obligations owed in respect of each other or the sharing of day-to-day household expenses, recognising that the applicants live in different countries and have not yet had a meaningful opportunity to establish their lives together.
The Tribunal finds that overall, the consideration of the financial aspects of the applicants’ relationship supports the visa applicant’s claim to meet the requirements of r.1.15A(3)(a) and in the applicant’s circumstances the Tribunal gives this modest weight.
Nature of the household – including any joint responsibility for the care and support of children; the living arrangements of the applicants; and any sharing of the responsibility for housework.
The applicants do not claim to have any children or joint responsibility for the care and support of children. The Tribunal accepts this evidence.
The applicants claim that the review applicant has spent the following time with the visa applicant in Afghanistan:
·approximately 10 weeks after their 2016 wedding;
·approximately 60 days from June 2017; and
·approximately three months from July 2019.

These claims are consistent with travel documents the review applicant provided to the Tribunal and with information about the review applicant’s overseas travel recorded in his Australian Government Movement Records. The Tribunal accepts this evidence, save that the applicant’s movement records indicate his 2017 trip was for 70 days, rather than 60 days.
The applicants have spent approximately 230 days together in the five years since their August 2016 marriage. The review applicant explained their living arrangements during each of those trips to the Tribunal. In summary, in 2016 and 2017 the applicants stayed with the visa applicant’s father in Jaghori and in 2019 stayed at a house owned by the review applicant’s uncle in Afghanistan with the review applicant’s mother and older sister.
The applicants have had a longer than usual period of co-habitation for applicants living in different countries but have had very limited opportunities to live as a couple on their own or to genuinely establish their own household and the sharing of housework for that household.
The Tribunal finds that overall, the consideration of the nature of the applicants’ household is neutral and neither supports nor undermines the visa applicant’s claims to meet the requirements of r.1.15A(3)(b).
Social aspects of the relationship – including whether the applicants’ represent themselves to other people as being married to each other; the opinion of the applicants’ friends and acquaintances about the nature of the relationship; and any basis on which the applicants plan and undertake joint social activities.
The evidence before the Tribunal of the social aspects of the applicants’ relationship includes:
·The oral evidence of the review applicant’s 23-year-old sister, Ms Fouzia Hussaini;
·Six family photos;
·Three photos of Ms Fouzia Hussaini’s wedding in 2019; and
·46 photos of the applicants on their honeymoon in 2018 and eating with family and friends at different times, some of which were duplicates.
The applicants provided two statutory declarations from Mr Said Ali Jan Husseini, the review applicant’s cousin and from Mr Sayed Yasin Hussaini, the review applicant’s brother-in-law with the visa application to the Department and also provided approximately 50 photographs of the applicants, their wedding ceremony (but no photos of the guests eating) and with what appears to be family in various settings to the Department.
Ms Fouzia Hussaini gave evidence that she attended the applicants wedding in Afghanistan with her mother and brother and then they did activities with the applicants afterwards. Ms Hussaini told the Tribunal she married in 2019 in Afghanistan, but could not remember the date, and that the review applicant was in Afghanistan at the time and attended Ms Hussaini’s wedding with his wife, the visa applicant. Ms Hussaini gave evidence that she had regularly observed the applicants communicating using telephone and video calls and she considers their relationship to be genuine and ongoing. After the Tribunal hearing Ms Hussaini provided photos of her wedding showing the applicants in attendance.
The Tribunal accepts the evidence of Ms Hussaini, which was helpful in the conduct of this review. The representative noted who was in each of the family and Ms Hussaini’s wedding photos and this was of assistance to the Tribunal. The other photos provided to the Tribunal and to the Department were not labelled at all with details such as where the photos were taken, when they were taken and when people other than the applicants’ were in the photos, who those other people were.
Apart from Ms Hussaini’s oral evidence there is very little evidence from friends and acquaintances of the applicants. The review applicant told the Tribunal he does not have many friends or acquaintances. The Tribunal was not provided with additional statutory declarations from any of the parents of the applicants or other family members and if it were not for the evidence of Ms Hussaini this could have been a significant concern for the Tribunal.
The Tribunal finds the applicants represent themselves to other people as being married to each other and their marriage is accepted by their families. This supports the visa applicant’s claim to meet the requirements of r.1.15A(3)(c).
There is little evidence before the Tribunal about the opinion of the applicants’ friends and acquaintances views about the nature of the applicants’ relationship and the Tribunal makes no findings in this regard. The Tribunal finds this consideration is neutral and neither supports nor undermines the visa applicant’s claim to meet the requirements of r.1.15A(3)(c).
There is some, but not well-presented evidence, supported by the applicants’ oral evidence, that when together they have planned and undertaken joint social activities, such as attending Ms Hussaini’s 2019 wedding. The Tribunal finds this supports the visa applicant’s claim to meet the requirements of r.1.15A(3)(c).
The Tribunal finds that overall, the consideration of the social aspects of the applicants’ relationship supports the visa applicant’s claims to meet the requirements of r.1.15A(3)(c) and in the applicant’s circumstances the Tribunal gives this only some weight.
Nature of applicants' commitment to each other – including the duration of the relationship; the length of time during which the applicants have lived together; the degree of companionship and emotional support that the applicants draw from each other; and whether the applicants see the relationship as a long-term one.
The Tribunal accepts the evidence before it that the applicants’ have been married for over five years and in that time have spent approximately 230 days together and both see their relationship as a long-term one. The Tribunal finds that these considerations support the visa applicant’s claims to meet the requirements of r.1.15A(3)(d) and the Tribunal gives this some weight.
The Tribunal was provided with extensive evidence of the applicants’ ongoing communications, which initially was not well presented. After the hearing this evidence was provided in chronological order but the text messages were in a language other than English, were not translated for the Tribunal and overall the records were incomplete although only a few months of records were missing. The Tribunal accepts this evidence shows collectively shows the applicants have communicated regularly with each other since their August 2016 marriage but otherwise this evidence gave the Tribunal little insight into or understanding of the nature of the applicants’ relationship.
When the Tribunal separately questioned the applicants’ they demonstrated a reasonable level of knowledge of each other’s personal circumstances and their plans for the future as a couple, although neither applicant was very forthcoming with information during the Tribunal hearing when being asked about these matters. The Tribunal is mindful of the level of the applicants’ educations and literacy. The Tribunal also acknowledges the Tribunal hearing occurred over video for the review applicant and by telephone for the visa applicant with the Tribunal hearing being conducted with the assistance of an interpreter. In these circumstances the Tribunal affords the applicants’ some leeway when assessing their oral evidence and draws no adverse inferences against the applicants because the Tribunal found at times the applicants answers were not as expansive as the Tribunal might have otherwise expected.
When the Tribunal asked the applicants about the visa applicant’s present circumstances of living in Kabul with one of her brothers both applicants’ evidence changed significantly and they were both more expansive in their answers and able to articulate their fears, the emotional support they gave each other and the companionship they drew from each other during this time and since through regularly communicating with each other. The applicants each gave consistent but not identical evidence from their respective perspectives of the visa applicant travelling to Kabul to obtain identification and other official documentation, living in a hotel for a month during which time the Taliban took control of Afghanistan and began searches particularly of hotels and the concerns both applicants felt if the Taliban discovered the visa applicant with official documentation from the previous government.
Both applicants explained that one of the visa applicant’s brothers then came to Kabul, in part due to the requests of the review applicant, to support the visa applicant and they rented a small apartment on the top story of a three-story building consisting of a main room and bathroom and that is where the visa applicant and her brother continue to live. The visa applicant told the Tribunal the security situation is not safe for her in Kabul and is constantly changing such that she does not leave their rented accommodation.
The applicants were able to explain in detail their communications during this time and how they supported each other, particularly the emotional support they gave each other to get through what they both described as an incredibly stressful time for each of them as they both feared for the visa applicant’s safety and continue to do so. The Tribunal found this evidence to be credible and impressive.
The Tribunal formed the view from the applicants’ oral evidence that they draw meaningful companionship and emotional support from each other consistent with what could reasonably be expected of a married couple in the applicants’ circumstances and cultural context.
The Tribunal finds that the consideration of the companionship and emotional support the applicants draw from each other supports the visa applicant’s claims to meet the requirements of r.1.15A(3)(d).
The Tribunal finds that overall, the consideration of the nature of the applicants’ commitment to each other supports a finding that the visa applicant meets the requirements of r.1.15A(3)(d) and the Tribunal gives this consideration great weight.
Any other circumstances of the relationship
The Tribunal discussed with the review applicant his name and how his name had been completed on the visa application compared to the family name used for other family members of the review applicant. The review applicant told the Tribunal his correct name is Mr Mohammad Hussain Hussaini but he is sometimes referred to as Hussain even though his family name is Hussaini.
The Tribunal noted that the applicant’s Sponsorship for a Partner visa form did not record his family name or that the review applicant is known by different names when there is specific questions in the form about this. The review applicant’s evidence to the Tribunal was that he did not complete any of the forms because his level of literacy is not sufficient and he was not aware of what name was used for him or his family members in the forms used for the visa application.
The review applicant’s evidence means that he has the same family name as the visa applicant. The Tribunal asked the review applicant if he is related in any manner to the visa applicant and the review applicant responded that he is not. The Tribunal asked the review applicant if he and the visa applicant had been invited to provide deoxyribonucleic acid (DNA) evidence to which the review applicant replied that they have not but that he would be willing to do so if asked.
The Tribunal draws no adverse inferences against the visa applicant in relation to these matters.
The representative in his submission to the Tribunal received by the Tribunal on 13 October 2021 addressed a number of the adverse findings made against the applicants in the primary decision. These submissions addressed in particular the review applicant’s work and financial support of the visa applicant, their wedding photos not showing the claimed 150 to 200 guests, why it took two years after the applicants’ marriage to lodge the visa application and the visa applicant’s evidence about the applicants’ future plans including having children. These submissions were of assistance to the Tribunal in the conduct of this review. Without making findings about each of these matters, the Tribunal does not have any residual concerns about these matters given all of the evidence before the Tribunal including the oral evidence of the applicants and Ms Hussaini.
Conclusion
The Tribunal is satisfied 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) of the Act.
After considering all the evidence before it and each of the matters set out in r.1.15A(3) above, the Tribunal is satisfied that, at the time of the application for the visa and at the time of this decision, the visa applicant and the review applicant:
·have a mutual commitment to a shared life as a married couple to the exclusion of all others, as required by s.5F(2)(b) of the Act;
·the relationship between them is genuine and continuing, as required by s.5F(2)(c) of the Act; and
·live together or at least and do not live separately and apart on a permanent basis, as required by s.5F(2)(d) of the Act.
The Tribunal therefore finds that the visa applicant meets the requirements of s.5F(2) of the Act at the time of the application for the visa and at the time of this decision.
Therefore, the visa applicant meets the requirements of cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.
Conclusion
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.
Michael Ison
Senior 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).

[2022] AATA 256

31 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction