Hussaini (Migration)

[2021] AATA 1117

Hussaini (Migration) [2021] AATA 1117 (26 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nasiba Hussaini

VISA APPLICANT:  Mr Mohammed Barati

CASE NUMBER:  1827168

DIBP REFERENCE(S):  BCC2017/3404771

MEMBER:Steven Griffiths

DATE:26 January 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made 26 January 2021 at 7.37pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa -– parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5CB, 5F, 65, 360, 375A
Migration Regulations 1994, rr 1.09,1.15, Schedule 2, cls 309.211, 309.221

CASES
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 Immigration on 14 September 2018 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 visa applicant, Mr. Mohammed Barati, applied for the visa on 15 September 2017 on the basis of his relationship with his sponsor, the review applicant, Mrs. Nasiba Hussaini. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the relationship of the parties did not meet the definition of spouse, as defined in c.5F of the Act, of the sponsor.

4. The parties were assisted by their registered migration agent, Ms. Libby Hogarth, of Australian Migration Options. 

5. While the Tribunal had invited the parties to a hearing scheduled for 21 January 2021, the Tribunal determined upon reviewing the documented evidence provided prior to the hearing it was appropriate for a decision to be made on the papers.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file and the Tribunal file including additional information provided by the applicants.

   ISSUE

8. The issue in the present case is whether the applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGOUND OF THE EVIDENCE

9. Mr. Barati was born in Afghanistan in 1991. His parents, born 1949 & 1962, and brother and sister, born 2006 & 2007, all live in Iran. He lived in the United Kingdom from 11/2011 and arrived in Australia on 5/3/20 on a Visitor 600 Visa to 4/3/21.   

10. Mrs. Hussaini was born in Afghanistan in 1997. Her parents, born 1949 & 1965, and two brothers, born 1996 & 1998, all live in Australia. She arrived in Australia on 21/10/13 after being granted a Partner 309 Secondary applicant visa on 3/10/13 and on 16/10/15 was given Permanent Resident status.

    BACKGROUND OF THE EVIDENCE

11. Since the Department made a decision, the sponsor has provided further information to the Tribunal including:-

    Parties text messages and call register, 15/8/18 to 25/9/18

    Migration agent email, 17/10/18

    New migration agent, 22/3/19, confirmation of pregnancy & due 8/2019

    Northern Clinic, Sponsor GP, confirmation of pregnancy, 20/2/19

    Wedding in India documents

    Northern Clinic, confirmation of sponsor second pregnancy, 12/2020

    Birth Certificate of daughter of parties, Yasmeen Barati, 24/9/19

    Sponsor Australian Citizenship, 11/9/19

    Applicant Statutory Declaration, 18/12/20

    Sponsor Statutory Declaration, 6/1/21

    Migration Agent submission, 8/1/21

    Sponsor payroll details, 5/1/21

    Money transfers, sponsor to applicant, 19/11/18 $ 2000, 4/11/18 $ 200, 8/1/20 $ 1755.60

    Details of money used for marriage of parties in India, July 2017

    Sponsor appointment of applicant as superannuation beneficiary, 7/3/19

    Joint purchase of home furniture, 29/11/20

    Sponsor bank account 21/8/20 to 22/10/20

    ANZ Bank confirmation of joint name bank account opened 12/3/20

    Form 888 Statement, Mohammed Ali Hussaini, brother of sponsor, 5/1/21

    Form 888 Statement, Laila Jafari, friend of sponsor, 22/12/20

    Form 888 Statement, Ibrahim Hussaini, brother of sponsor, 22/12/20

    Form 888 Statement, Arefa Hassani, friend of sponsor, 22/12/20

    Parties proof of address, certificate for work on house, 21/10/20 and driver’s licences.

    Documents of purchase of home by sponsor, September 2019

    Documents related to hotel room rental in India, July 2017, funds from both parties

    11 photos of the parties with their daughter, 13 photos of wedding and 7 photos of the parties, daughter and family members

    Statement by Marzia Karimi, long term friend of the sponsor since living in Pakistan, not dated.

    Is the sponsor an Australia citizen, and Australian permanent resident or an eligible New Zealand citizen?

12. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian Permanent Resident or an eligible New Zealand citizen.

13. The Tribunal accepts the documented evidence of the sponsor being an Australian Citizen by grant from 11/9/19.      

    Whether the parties are in a spouse or de facto relationship

14. 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).

15. 'De facto partner' is defined in 5CB of the Act, which provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

16. In forming an opinion whether they are in a spouse or de facto relationship consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.09A(3) which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

17. 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.

18. The Tribunal notes that at the time the visa application was made the parties provided documented and photographic evidence of being married in India on 5 July 2017.

19. The Tribunal notes the Delegate in the Refusal Decision determines the parties as being in a spousal relationship.  

20. The Tribunal has regard to the documented evidence and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).

    Are the other requirements for a spouse relationship met?

21. The Tribunal has considered the evidence relevant to the matters in r.1.15A. The Tribunal took into account the available documentary evidence contained on the Department’s file and the Tribunal’s file and evidence provided to the Tribunal.

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (i)any joint ownership of real estate or other major assets; and

    (ii)any joint liabilities; and

    (iii)the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)the basis of any sharing of day‑to‑day household expense

22. The Tribunal determines from the documented evidence of the parties that at the time of the visa application and this decision no real estate or other major assets was or is jointly owned by the parties.

23. The Tribunal accepts the documented evidence of a purchase of a home by the sponsor in her name only in September 2019, noting the parties had been married in excess of 2 years at this time but the applicant was not permitted to live in Australia and could not legally be part of the purchase.

24. The Tribunal determines from the documented evidence of the parties that at the time of the visa application and this decision, the parties do not have any joint liabilities.

25. The Tribunal accepts the documented evidence of the home loan liability in the name of the applicant only from September 2019.

26. The Tribunal determines from the documented evidence of the parties that at the time of the visa application and this decision, none of the parties has a legal obligation to the other.

27. The Tribunal accepts the documented evidence of the parties that the sponsor is working as a quality control officer in South Australia and on-line student.  

28. The Tribunal accepts the documented evidence of the parties that the applicant had operated a car wash and oil change business while living in England.  

29. The Tribunal accepts the documented and photographic evidence of the parties that they were each responsible for the costs of their travel in 2017 and 2019 when they spent periods together, and that they both contributed to the accommodation and other costs during these periods and determines this to represent, at the time of application, the pooling of finances.

30. The Tribunal accepts the documented evidence of money transfers from the sponsor to the applicant on 4/11/18 for $ 200, on 19/11/18 for $ 2000 and on 8/1/20 for $ 1755.60. 

31. The Tribunal accepts that the documented evidence that for the time to March 2020 when the applicant was permitted to come to Australia he had lived in the United Kingdom since 2011, other than the times he and the sponsor had travelled to other countries to be together, and that for this time apart the parties had maintained individual bank accounts in the countries they lived and while recognising the 3 money transfers made by the sponsor to the applicant, determines that as regular money transfers were not provided to each other as both were working and it was not necessary for one of them to regularly support the financial needs of the other, puts little weight on this for the period to March 2020.

32. The Tribunal accepts the documented evidence of the parties that a joint bank account has been operated since March 2020 when the applicant was permitted to come to Australia on a Visitor 600 Visa, with the applicant not holding work rights, and the parties have lived on the wage income of the sponsor and determines this to represent, the sharing all household and living expenses and assets purchased.   

    Nature of the household aspects that must be considered include:-

    (i)any joint responsibility for the care and support of children; and

    (ii)the living arrangements of the persons; and

    (iii)any sharing of the responsibility for housework

33. The Tribunal accepts the documented and photographic evidence of the parties that they have a daughter, born 24/9/19 in Australia, and that the sponsor is now pregnant with the parties second child, who is due to be born mid-2021, and determines, at the time of this decision, the parties have joint responsibility for the care and support of their child and soon to be born second child.

34. The Tribunal accepts the documented evidence of the parties that the applicant was refused a visa to come to Australia for the birth of their daughter on 24/9/19.

35. The Tribunal accepts the documented evidence of the parties that from the time of committing to their relationship, they have lived together in India for 10 days from 1/7/17 and for 32 days in Iran from 8/1/19, while the parties were living in different countries.

36. The Tribunal accepts the documented evidence of the parties that they have lived together since 5/3/20 when the applicant arrived in Australia on a Visitor 600 Visa.

37. The Tribunal accepts the documented evidence of the parties that the sponsor saved funds to purchase a home in Australia for she, the applicant and their children, with a home purchased in South Australia in September 2019 and rented to others until October 2020 from when the parties and their daughter have lived in it.

38. The Tribunal accepts that at the time of application the parties lived in different countries and did not share a household and puts little weight on this during this time.

39. The Tribunal accepts the documented and photographic evidence of the parties living together form 5/3/20 and the roles and responsibilities of each and determines, at the time of this decision,  the parties have shared the responsibility for housework at these times.  

    Social aspects of the relationship that must be considered include:-

    (i)whether the persons represent themselves to other people as being married to each other; and

    (ii)the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)  any basis on which the persons plan and undertake joint social activities

40. The Tribunal accepts the documented and photographic evidence of the parties of the wedding ceremony in India on 5/7/17, noting that the family of each were not able to attend due to cost while the parents of the sponsor have provided submissions of their support for the relationship and marriage, and determines, at the time of application and this decision, the parties represent themselves to other people as married.  

41. The Tribunal accepts the documented and photographic evidence of the parties that the applicant’s parents, the party’s siblings and their individual and collective friends, at the time of the visa application and this decision, are supportive of the relationship and marriage.

42. The Tribunal accepts the documented and photographic evidence of the parties that the parties planned and undertook joint social activities during the 10 days in India and 32 days in Iran they were together, noting that with the parties living in different countries they cannot do more than what they were in social activities and attaches little weight to this.

43. The Tribunal accept the documented and photographic evidence of the social life of the parties since the applicant arrived in Australia on 5/3/20 and determines, at the time of this decision, the parties plan and undertake joint social activities.

    Nature of the commitment to each other that must be considered include:-

    (i)the duration of the relationship; and

    (ii)the length of time during which the persons have lived together; and

    (iii)the degree of companionship and emotional support that the persons draw from each other; and

    (iv)whether the persons see the relationship as a long‑term one.

44. The Tribunal accepts the documented and photographic evidence from the parties first meeting in Pakistan in 2012, contacting the other by social media and the relationship developing to the applicant proposing marriage in early 2016, the families agreeing and the parties then seeking visas to marry in Australia and England, being refused and then deciding to marry in India in July 2017.

45. The Tribunal accepts the documented and photographic evidence of the applicant and sponsor travelling from England and Australia respectively to be with each other for 10 days in July 2017 and 33 days in January 2019 and that the applicant has been in Australia from March 2020, living with the sponsor and their daughter.   

46. The Tribunal accepts the documented evidence of the parties of contact between the parties happening multiple times every day for the period they were living in different countries.

47. The Tribunal accepts the documented evidence of the parties of the support the parties have provided to each other and determines, at the time of application and this decision, a high level of companionship and emotional support is provided by each of the parties to the other.

48. The Tribunal accepts the documented evidence of the parties and determines, at the time of application and this decision, the parties have an ongoing commitment to each other, the relationship and marriage as being for the long-term.

    Other circumstances of the relationship

49. The Tribunal accepts the cultural and religious issues attached to the relationship and marriage of the parties, noting that for the relationship to develop to one of travelling internationally to marry, without other family in attendance, would have been very difficult and was only able to happen with the strong support of the parents of the parties who believe in the commitment of the parties to the other.

50. The Tribunal accepts the documented evidence of the parties that the birth of their daughter in September 2019, and the applicant not being permitted to travel to Australia to attend the birth and be with his wife and child, was an extremely difficult period for the parties.

51. The Tribunal accepts the documented evidence of the parties that the Visitor Visa approval, after 2 unsuccessful applications, for the applicant allowing him to come to Australia in March 2020 was a significant boost for them.

52. The Tribunal accepts the documented evidence of the sponsor being due to have the second child of the parties in mid-2021 and with the applicant holding a visa allowing him to remain until 4/3/21 the uncertainty of if he will be permitted to be with his family for the birth and care needs of the children is causing the parties considerable concern.  

53. The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.

54. The Tribunal accepts that the documented and photographic evidence of the relationship of the parties and determines, at the time of the visa application and this decision, the parties do not live separately and apart on a permanent basis. 

55. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and the time of this decision.

56. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

57. 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.

58. Given the findings above, the appropriate course is to remit the application for the secondary visa applicant to the Minister to consider the remaining criteria for a Subclass 309 Visa.

    DECISION

59. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Steven Griffiths
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long‑term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).