Iqbal (Migration)

[2024] AATA 2519

Iqbal (Migration) [2024] AATA 2519 (24 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Waseem Iqbal

REPRESENTATIVE:  Mr Muhammad Iqbal Chaudhry (MARN: 1174774)

CASE NUMBER:  2218747

HOME AFFAIRS REFERENCE(S):          BCC2020/2154898

MEMBER:Mila Foster

DATE:24 June 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criterion for a Subclass 820 (Partner) visa:

·cl 820.211(2)(a)(i) of Schedule 2 to the Regulations

Statement made on 24 June 2024 at 3:57pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of the household – living arrangements – Apprehended Domestic Violence Order (ADVO) – knowingly provided false or misleading information – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 820.211

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 24 August 2020 on the basis that he was in a spouse relationship with Kanwal Afshan, his sponsor for the visa. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). Relevantly, an applicant will meet the requirements of cl 820.211(2)(a)(i) of Schedule 2 to the Regulations if they are the spouse or de facto partner of a person who is an Australian citizen, an Australian permanent resident or eligible New Zealand citizen.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl 820.211(2)(a) because he was not the spouse, as defined in the Act, of the sponsor and hence did not meet cl 820.211.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant was the spouse, as defined in the Act, of the sponsor at the time the visa application was made.

   Summary of claimed relationship

6. The applicant claims he is a 36-year-old national of Pakistan who arrived in Australia on a student visa on 17 February 2018. It is claimed that the sponsor is a 38-year-old national of Pakistan who is an Australian permanent resident. The applicant and sponsor (the parties) claim they were introduced by a friend, Ayesha, and began communicating by phone. They claim the applicant was living in Melbourne while the sponsor was living in Sydney, and that they eventually met in person in Sydney. They claim they married at the Registry of Births Deaths and Marriages in Parramatta (NSW) on 21 August 2019 and have been in a spouse relationship ever since. They claim they have lived together along with the sponsor’s 19-year-old daughter from a previous relationship.

7. The applicant declares he has no prior marriages or de facto relationships. The sponsor initially declared one prior marriage and later declared an earlier marriage.

   Overview of evidence

8. The evidence before the Tribunal includes a copy of the Department of Home Affairs file relating to the visa application. The file includes several written requests the Department made in 2021 and 2022 for further information and evidence about the parties’ relationship. In an invitation dated 14 April 2022 the Department gave the applicant the opportunity to comment on information that his sponsorship had been withdrawn which suggested the parties’ relationship had broken down. In response to the requests and the invitation the applicant provided documentary and photographic evidence including the following statements and statutory declarations:

   a.Undated essentially identically worded statements made by the applicant and sponsor about the development of their relationship, the financial and social aspects of their relationship, the nature of their household and the nature of their commitment to each other.

   b.A statutory declaration made by the sponsor on 13 December 2021 declaring that she was unable to obtain a copy of the divorce certificate relating to her first marriage.

   c.A statutory declaration made by the applicant on 1 April 2022 declaring that the parties were living together and their relationship was continuing.

   d.A statutory declaration made by the sponsor on 12 May 2022 declaring that there had been some misunderstanding – the parties’ relationship was continuing, the parties were living together and she was still sponsoring the applicant for the visa.

   e.Similarly worded statutory declarations made by the applicant and the sponsor on 30 September 2022 regarding their relationship.

9. On 23 March 2023 the Tribunal received a Provisional ADVO[1] issued against the applicant by the Parramatta Local Court on 19 March 2023 for the protection of the sponsor and her daughter. Amongst other things the Provisional ADVO ordered that the applicant must not go within 200 metres of where the sponsor and her daughter lived or worked. The orders were to be followed until revoked or a further order made by the Court became effective.

   [1] Apprehended Domestic Violence Order.

10. In light of the Provisional ADVO, the Tribunal issued a written invitation to the applicant dated 26 September 2023 to provide information about the status of his relationship with the sponsor. Some documents and photographs were provided in response but no specific information about the status of the parties’ relationship. The applicant’s representative indicated that statements from the applicant and sponsor would be forthcoming but none were provided.

11. The applicant was invited to appear before the Tribunal on 1 March 2024 to give evidence and present arguments. In response the applicant requested that the Tribunal take oral evidence from the sponsor and provided a written statement from the sponsor dated 21 February 2024 in which she described her ongoing relationship with the applicant. The hearing was adjourned so that an Urdu speaking interpreter could be arranged and the applicant could provide evidence that the Provisional ADVO was no longer in force. The applicant subsequently provided a Final ADVO issued against him by the Parramatta Local Court on 8 December 2023 which ordered that for a duration of two years he must not assault, threaten, stalk, harass, or intimidate the sponsor or her daughter, or destroy or damage any property or harm any animal that belongs to them.

12. The hearing was resumed on 14 March 2024. The applicant presented evidence and arguments, and the Tribunal also received oral evidence from the sponsor. After the hearing the Tribunal invited the applicant, pursuant to s 359A, to respond to adverse information which included oral evidence the sponsor gave at the hearing.[2] A response dated 12 April 2024 was provided on the applicant’s behalf by his representative.

    [2] The invitation also gave the applicant the opportunity to comment on or respond to the gist of information on the Department file which was subject to a non-disclosure certificate issued on 29 December 2022 pursuant to s 375A of the Migration Act 1958, Cth.

    Whether the parties are in a spouse or de facto relationship

13. ‘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 parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

15. The Tribunal has before it a marriage certificate issued by the NSW Registry of Births, Deaths and Marriages which states that the parties married on 21 August 2019 at the Parramatta registry.

16. The applicant declared in the visa application form that he had not been married or in a de facto relationship prior to marrying the sponsor. There is no evidence before the Tribunal to contradict that claim.

17. It was declared in the visa application form that the sponsor had one prior marriage to David Ramzan from 26 April 2011 to 13 February 2019. According to information provided in the visa application there was one child of the sponsor’s marriage to Ms Ramzan and the sponsor’s child, Isha Isha, was born on 14 August 2004. However, according to the sponsorship form completed by the sponsor on 16 August 2020 her marriage to Mr Ramzan ended on 14 March 2019. A Divorce Order made by the Federal Circuit Court of Australia on 13 February 2019 submitted to the Department confirms that the sponsor’s marriage to Mr Ramzan ended on 14 March 2019. The Divorce Order stated that there was one child under the age of 18 years of the sponsor’s marriage to Mr Ramzan – Isha Isha, but gave her date of birth as 14 August 2014. On 15 July 2021 the Department wrote to the applicant seeking details of the sponsor’s separation from her former spouse(s)/partner(s) and her child. In response the representative sent an undated letter to the Department on 17 July 2021 which stated that the sponsor had entered her first marriage with Shakeel Ahmad in 1995, they separated in 2004 and she had one daughter, Isha, who was born on 14 August 2004.

18. On 2 September 2021 the Department sent a further request to the applicant for evidence that the sponsor’s relationship with her first former spouse had ended. On 2 November 2021 the representative wrote that the applicant was having difficulty obtaining divorce documents relating to the sponsor’s first marriage. Then, in the statutory declaration made on 13 December 2021, the sponsor stated that she had been unable to obtain the divorce certificate from Pakistan relating to her divorce from Mr Ahmad but she provided it with her previous immigration matter. The Tribunal has taken the ‘previous immigration matter’ to be Partner visas Mr Ramzan had sponsored her for. Submitted in connection with the applicant’s visa application was a visa grant notice relating to Subclass 100 Partner (Migrant) visas granted on 22 March 2017 to the sponsor and her child, referred to as Isha born on 14 August 2004. According to information in a second sponsorship form lodged on 12 May 2022, the sponsor was granted a Partner visa on 7 November 2014 on the basis of her marriage to Mr Ramzan. The form again stated that there was one child of the sponsor’s marriage to Mr Ramzan. Presumably the Partner visa referred to therein was a temporary Partner visa the sponsor was granted prior to the Subclass 100 visa.

19. No explanation has been given as to why there was no mention of the sponsor’s first marriage in the visa application form or the two sponsorship forms. No explanation has been provided as to why the sponsor would not be able to obtain a copy of the divorce certificate relating to her first marriage. It seems hard to believe that she could not obtain it. However, given the evidence indicates the sponsor and her daughter were granted Partner visas on the basis of the sponsor’s marriage to Mr Ramzan and there is nothing on the Department file to raise doubts that a divorce certificate relating to the sponsor’s first marriage was submitted in connection with her Partner visas, the Tribunal accepts that the sponsor’s marriage to Mr Ahmad ended by divorce before she married Mr Ramzan. Further the Tribunal accepts on the basis of the Divorce Order that she and Mr Ramzan were divorced when the parties married.

20. Thus, on the evidence before it the Tribunal is satisfied that 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?

21. Much of the documentary evidence before the Tribunal about the parties’ relationship relates to their relationship after the time of application. Nevertheless, the Tribunal considers the evidence relevant to assessing the parties’ relationship at the time of application.

22. Financial aspects of the relationship The parties claim to have one joint asset – a joint bank account. A letter from Westpac dated 7 May 2019 submitted to the Department refers to the joint account being opened. According to information in the visa application form and the sponsorship forms, the parties committed to a shared life together to the exclusion of all others on 21 August 2019, the date of their registry marriage. The Tribunal thus asked the parties at the hearing why they opened a joint bank account in May 2019. The applicant replied that their ‘plan was there, they were getting close’ so they opened the account. The sponsor stated that the parties were doing things step by step and were planning to marry so they opened the account. However, according to the parties’ undated written statements the applicant proposed to the sponsor in July 2019. Further, only a few bank statements for the joint account have been presented from 30 April 2021. There are thus no bank statements before the Tribunal to show that the parties used the joint account from May 2019 in a way which indicates they planned to marry or had committed to a shared life together earlier than stated in the visa application and sponsorship forms. The Tribunal thus does not accept the parties’ explanation.

23. The applicant stated at the hearing that he had an individual bank account which he did not use and the sponsor had an individual bank account. The sponsor stated however that she had closed an individual account she had in the past. This inconsistency was put to the applicant in the s359A invitation. In response he stated that he was not aware that the sponsor’s account had been closed as he generally did not ask about her finances so that she had the liberty of using her own finances as she preferred. The parties claim they have been in a spouse relationship for almost 5 years and the applicant stated at hearing that the parties were using the joint account to save to purchase a property together in the future. If that is true, then it seems reasonable to expect that there would be some communication about their financial circumstances at least to the extent that the applicant would have become aware in the last 5 years whether or not the sponsor had her own individual bank account. The Tribunal thus does not accept the applicant’s explanation for the inconsistency.

24. The sponsor stated in her statement of 21 February 2024 that the parties’ financial matters were handled through the joint bank account which reflected their collaborative approach to managing expenses. According to the parties’ written statements, in the past the applicant earned an income working as a taxi driver and uber driver. At the hearing the applicant stated he had recently begun working in a data entry role. The few statements presented for the parties’ joint account indicate deposits from Uber. However, no documentary evidence has been presented to show that the parties used the joint bank account prior to May 2020 to manage their claimed expenses. No bills have been presented (despite requests from the Department) nor any aspects of the bank statements identified as relating to the payment of household expenses.

25. At the hearing the Tribunal asked the applicant whether the sponsor made any financial contribution to the parties’ relationship. The applicant stated that she worked casually as a security guard and sometimes deposited her wages into the parties’ joint account and sometimes into her daughter’s account. However, the sponsor stated at the hearing that her employer deposited her wages into the parties’ joint account. Further, it is not apparent from the bank statements that any of the sponsor’s wages are deposited into the joint account. In relation to the inconsistency in the parties’ evidence the applicant stated in the s 359A response that he was not sure about which account the sponsor put money into and genuinely believed she could have deposited money into her daughter’s account. It seems reasonable to expect that if the sponsor’s employer was depositing the sponsor’s wages into the parties’ joint account that the applicant would be aware of this or if he was not sure into which account her wages were deposited that he would have said so at the hearing. Further, it seems reasonable to expect that if the parties had been using their joint account to save to purchase a property together and to pay for all their grocery shopping as was claimed at hearing, that the applicant would be aware whether the sponsor or her employer was depositing her wages into the joint account and whether all or part of her wages were being deposited into the account. The Tribunal does not accept the applicant’s explanation. Further, bank statements for the parties’ individual accounts have not been presented. The Tribunal thus does not believe it has been given an accurate account of the parties’ financial circumstances.

26. The parties claimed they spoiled each other with gifts but there is no corroborative evidence of the purchase of gifts. The applicant claimed at the hearing that he bought the sponsor a car. There is no supporting documentary evidence of this.

27. There is no documentary evidence to indicate that the sponsor has made a financial contribution to the parties’ relationship. There is no documentary evidence of pooling of financial resources. The parties have no joint liabilities. There is no evidence that one party owes a legal obligation to the other party. Given the sponsor works and the length of the parties’ marriage, these matters do not seem consistent with a genuine and continuing relationship. The Tribunal thus does not regard the financial aspects of the parties’ relationship to be a persuasive indicator of a spouse relationship at the time of application.

28. Nature of the household In her statement of 21 February 2024, the sponsor stated that the applicant treated her daughter with ‘the utmost care and love’, had ‘taken on the role of a father figure with diligence and respect,’ and had filled ‘the void of fatherhood by establishing a genuine and supportive friendship with her’. This seems inconsistent with information in the Provisional ADVO application which reports that while out with a male friend the sponsor’s daughter saw the applicant in his vehicle staring at her, looking really angry and red in the face; he sent 20 text messages to the sponsor which included 3 photographs of her daughter with a male friend; he sent several text messages to the sponsor’s daughter about associating with males; he parked his car outside the unit of the sponsor and daughter and shouted words to the effect that ‘You and your daughter are the same person. I am going to burn your car. I will come back and I will keep coming back”; shouted ‘Go to the police, I will come back’; and that the sponsor’s daughter expressed being in fear for her personal safety and informed the police that she was afraid to leave the unit because she did not know if the applicant would be following her or what would make him angry.

1. When the above was put to the applicant in the s 359A invitation he responded that he had a good relationship with the sponsor’s daughter and considered her as his own daughter. The representative submitted that disagreements/arguments amongst family members as well as ‘clashes’ between parents and teenagers are not uncommon. He stated that even after these arguments, the applicant, the sponsor and the sponsor’s daughter stood together as a family. It was further submitted that the matters referred to in the Provisional ADVO are not supported by any evidence, ADVOs are generally decided on the balance of probabilities and not beyond a reasonable doubt, the ADVO was uncontested and accepted by the applicant on a ‘without admission’ basis, and related charges were withdrawn/dismissed. Thus, the representative submitted, the mere presence of information in the Provisional ADVO did not prove the actual occurrence of the alleged conduct by the applicant. However, the applicant agreed that he and the sponsor’s daughter had a disagreement which led to events resulting in the Provisional ADVO. The applicant was said to be remorseful and since made amends with his family.

2. The Tribunal does not accept that there was not ‘any evidence’ to support what was set out in the application for the Provisional ADVO – there was the evidence the sponsor and her daughter provided to the police who made the application. A court may make an ADVO if satisfied on the balance of probabilities that a person in a domestic relationship with another person has reasonable grounds to fear and in fact fears domestic violence, intimidation or stalking which in the opinion of the court warrants the making of the order. This indicates that an ADVO is made on the basis of some evidence. The Tribunal can have regard to any evidence which it considers relevant and probative and is not limited to having regard to matters which are established ‘beyond a reasonable doubt’. The Provisional ADVO indicates that the sponsor and her daughter claimed to have been subjected to conduct by the applicant which caused them to fear for their personal safety and a Provisional ADVO was issued on that basis. The Tribunal does not accept that the kind of conduct referred to in the Provisional ADVO or the effect it had on the sponsor’s daughter is merely in the nature of an argument or disagreement amongst family members. Further, there is no supporting written or oral evidence from the sponsor’s daughter to contradict the information in the Provisional ADVO or about the nature of her relationship with the applicant - the Tribunal’s considers this telling.

3. In making no reference to any issues in the relationship between the applicant and her daughter in her written statement of 21 February 2024 and in the absence of any direct evidence from the sponsor’s daughter about her relationship with the applicant, the Tribunal finds that the sponsor sought to give a misleading impression in her statement about the nature of the relationship between the applicant and her daughter. Further, the Tribunal finds that in giving this written statement to the Tribunal, the applicant also sought to mislead the Tribunal about the nature of his relationship with the sponsor’s daughter.

4. A few photographs have been presented of the parties with a young woman who the Tribunal presumes is the sponsor’s daughter – at what appears to be the parties’ registry marriage, a high school graduation and an 18^th birthday celebration. There are no photographs of the applicant and the daughter alone as might be expected if they were in a father and daughter relationship of the kind claimed by the parties. Nor, as already stated, is there a supporting statement from the sponsor’s daughter about the nature of her relationship with the applicant.

5. While the Tribunal has concluded that the account the sponsor gave in her statement of 21 February 2024 about the nature of the applicant’s relationship with her daughter was misleading, the photographs provide some evidence of a relationship between the applicant and the sponsor’s daughter. Further, the Provisional ADVO and Final ADVO are evidence of a domestic relationship between the applicant, the sponsor and her daughter, albeit not as entirely harmonious as the sponsor sought to portray. The Tribunal has given this evidence some weight.

6. The parties have given inconsistent evidence about their living arrangements during their relationship particularly immediately after they married.

7. According to the visa application form the applicant and sponsor shared the same residential address – a unit in North Parramatta. The applicant submitted a lease indicating the parties became joint tenants of the unit on 30 January 2020. The applicant stated in the statutory declaration he made on 1 April 2022 that the parties were living together. A tenancy ledger states that the parties were joint payees of the North Parramatta unit from 15 February 2021 to 25 September 2023. In the statement the sponsor made on 21 February 2024 she stated that the parties had been residing at the (North) Parramatta address since they married. However, other evidence contradicts these claims. In the Form 80[3] completed on 6 August 2020, the applicant provided an address in Victoria as his current residential address. The applicant stated at the hearing that he had not lived with the sponsor on an ongoing basis until 30 January 2020 when they leased the North Parramatta unit. He claimed that prior to that the sponsor was living in Ryde in NSW while he lived in Melbourne because he was studying there. He said he would visit and stay with the sponsor in Ryde until they leased and moved to the North Parramatta unit together. Further, information was provided to the Department on 27 April 2022 that the parties had separated and had not lived together since 28 March 2022 which indicates the parties had not lived together for one month. According to information in the application for the Provisional ADVO the parties had separated in February 2023. At the hearing the applicant stated that the only time the parties had lived apart was for 8 months in 2023 due to the AVO.[4]

   [3] Department of Home Affairs ‘Personal particulars for assessment including character assessment’ form.

   [4] Which the Tribunal understood was a reference to the Provisional ADVO issued on 19 March 2023.

8. The information provided to the Department, the information in the Provisional ADVO and the applicant’s oral evidence is thus inconsistent with the claim that the parties had lived together at the (North) Parramatta unit since they married. Further, the applicant’s oral evidence that the parties had only lived apart for 8 months in 2023 is inconsistent with the information provided to the Department that the parties had lived apart in 2022. These inconsistencies were put to the applicant in the s 359A invitation. In response the applicant stated that the parties had disagreements and misunderstandings towards the end of February 2023 which contributed to disagreements in March 2023, and the whole sequence led to the Provisional ADVO being issued. Hence, the applicant claimed, the parties lived apart as a result of the Provisional ADVO due to a sequence of events rather than events which occurred on 18 March 2023. This does not address the fact that the sponsor stated in her written statement that the parties had lived together at the (North) Parramatta unit since they married. The applicant also stated in the s 359A response that he had moved out of the matrimonial home for a month in March 2022 following a disagreement but the parties reconciled at about the end of April 2022 and the applicant moved back into the matrimonial home. This does not explain why the applicant stated at the hearing that the only time the parties had lived apart was in 2023 for 8 months. Nor does it explain why the sponsor stated in her written statement that the parties had lived together since they married if they had lived apart for about one month in 2022 and 8 months in 2023 or the statement the applicant made in his statutory declaration of 1 April 2022 that the parties were living together. The Tribunal finds that the applicant knowingly gave incorrect evidence that the parties only lived apart in 2023. Further, the sponsor gave false evidence or at least, by omission, misleading information in her written statement of 21 February 2024 that the parties had lived together at the (North) Parramatta address since they married. In giving the sponsor’s written statement to the Tribunal the applicant knowingly provided false or misleading information about the parties’ living arrangements.

9. In their undated written statements, the parties claimed that they shared household chores in a flexible manner but the applicant mostly did the grocery shopping. In the statutory declaration the applicant made on 30 September 2022 he stated that the parties ‘helped each other in household’s’ without offering any detail about the nature of how they helped each other. In the statutory declaration the sponsor made on 30 September 2022 she stated that the household chores were shared and claimed the parties enjoyed grocery shopping together. She said she cooked food for the applicant and he helped her ‘in households’ but she provided no details about the specific nature of the help the applicant provided. In the statutory declaration she made on 21 February 2024 the sponsor stated that the parties shared the household chores. Asked about the sharing of housework at the hearing the applicant stated that the parties worked together, sometimes she did the laundry and sometimes he did the dishes and vacuumed. He said they shared and generally did grocery shopping together. While vague the parties have been generally consistent about sharing the housework and doing grocery shopping together. Hence the Tribunal has given this some weight. 

10. Various letters addressed to the parties at the North Parramatta address have been presented as well as the parties’ driver licences with the North Parramatta address as their residential address. Presumably this is to show that the parties lived together at the North Parramatta address. The correspondence is dated after the time of application. There is no indication when the driver licences were issued. They thus provide limited evidence that the parties resided at the North Parramatta address.

11. Despite the inconsistencies in the evidence about when the parties’ began living together, on the totality of the evidence the Tribunal is inclined to accept that the parties lived at the North Parramatta address from 30 January 2020 except from late March to late April 2022 and for about 9 months from February 2023 to December 2023 when they temporarily lived apart due to issues in their relationship and the Provisional ADVO.

12. Social aspects of the relationship At the hearing the applicant stated that the parties celebrated their marriage at the registry on 21 August 2019 by having a dinner in Parramatta. However, the sponsor stated that they celebrated their registry marriage by having a dinner in Auburn. This was put to the applicant in the s 359A invitation but no explanation for this inconsistency was provided. It seems reasonable to expect that the parties would be able to accurately recall whether the dinner they had to celebrate their marriage occurred in Parramatta or Auburn. No photographs of any dinner celebration have been provided nor any supporting witness statements from friends or family who attended the claimed dinner celebration. The Tribunal does not believe the evidence the parties gave about celebrating their registry marriage with a dinner was truthful.

13. The applicant and sponsor claim to be adherents of the Muslim religion. At the hearing the applicant stated that the parties had an Islamic marriage ceremony 15 days after their marriage at the registry. The sponsor however stated that the parties’ Islamic marriage ceremony occurred in August 2020. When the Tribunal noted to the sponsor the applicant’s evidence that their Islamic marriage ceremony occurred 15 days after their marriage at the registry, she then claimed that the parties had two Islamic marriage ceremonies because the first one was performed by a friend and she wanted an Islamic ceremony performed by an imam. It seemed the sponsor merely changed her evidence to overcome the inconsistency in her initial evidence with the applicant’s evidence. The inconsistency was put to the applicant in the s 359A invitation. In response he stated that the sponsor was confused because the parties celebrated their first-year anniversary in the presence of a friend who was a marriage celebrant and religious scholar which could have caused the sponsor to think the Islamic marriage was solemnised after one year. The applicant’s response seems to suggest that the marriage ceremony 15 days after the registry marriage was an Islamic marriage ceremony and the sponsor was mistaken about the nature of the anniversary celebration which occurred in August 2020. If that were true this does not explain why the sponsor did not initially mention in her oral evidence that the parties had an Islamic marriage ceremony 15 days after their registry marriage. Further, if the sponsor specifically wanted a marriage ceremony performed by an imam, it seems hard to believe that she would confuse an anniversary celebration conducted by a friend who was a religious scholar with an Islamic marriage ceremony conducted by an imam. The Tribunal does not accept the applicant’s explanation and does not believe that the oral evidence the parties gave about having an Islamic marriage ceremony was truthful.

14. At the hearing the applicant and sponsor stated that the applicant’s parents and siblings in Pakistan were aware of the parties’ marriage and would be meeting the sponsor the following month when they all planned to make their religious pilgrimage to Saudi Arabia. They stated that the sponsor’s family were aware of the parties’ marriage but the applicant had only met the sponsor’s sister, who visited from New Zealand for the sponsor’s daughter’s 18^th birthday celebration. The applicant said he had not met the sponsor’s parents and brother in Pakistan because the sponsor’s mother was murdered in a family dispute in 2022.  However, there is no supporting evidence from any family member to indicate that the parties represented themselves to family members as being married to each other. The Tribunal is not satisfied on the evidence before it that the parties have represented themselves to their parents and siblings as being married to each other.

15. The applicant has presented statutory declarations from four friends of the parties each of whom expressed the opinion that the parties’ relationship was genuine:

    a.Wajid Ali, who claimed to be a friend of the applicant and a witness at the parties’ wedding, made a statutory declaration on 20 August 2020 and another on 11 October 2022.

    b.Bushra Butt, who claimed to be a friend of the sponsor, made a statutory declaration on 19 August 2020.

    c.Aftab Abbas, who claimed to have known the applicant for 3 years, made a statutory declaration on 1 April 2022.

    d.Zabair Mahmood, who claimed to be a friend of the applicant, made a statutory declaration on 19 October 2022.  

16. In their undated statements the parties claimed that they organised dinners with their friends at their place and caught up with friends for lunch, dinner and special occasions. The sponsor made a similar claim in the statutory declaration she made on 12 May 2022. In the statutory declarations they made on 30 September 2022 the parties claimed they invited their family and friends to celebrate the sponsor’s daughter’s birthday in 2022. None of the friends who provided statutory declaration referred to engaging in such activities with the parties.

17. Mr Ali said he was in constant contact with the parties and regularly visited their house, and that the parties wanted to have a child together. Neither the applicant nor sponsor claimed they wanted to have a child together. The Tribunal expects that if they had such plans they would have mentioned it themselves. The Tribunal thus does not regard Mr Ali’s statutory declarations as entirely reliable and given it limited weight.

18. Ms Butt claimed she was in constant contact with the parties and had been ‘informed’ that they lived at the (North) Parramatta address. The Tribunal does not find it persuasive that a friend of the sponsor does not have personal knowledge that the parties lived together. The Tribunal gives her statutory declaration limited weight.

19. Mr Abbas stated he had visited the parties a few times. In the Tribunal’s opinion, a few visits is not a sound basis on which to form the conclusion that the parties’ relationship was genuine and that ‘their love for each other was unique’. The Tribunal gives his statutory declaration little weight.

20. Mr Mahmood claimed he believed the parties’ relationship was genuine and continuing and that they resided at the unit in (North) Parramatta but he stated he had not personally met the sponsor. He too stated that the parties wanted to have a child together. Having not met the parties the Tribunal gives no weight to Mr Mahmood’s opinion of the parties’ relationship.

21. On three occasions the Department requested that the applicant provide photographs of the applicant and sponsor with various third parties throughout their relationship. A few photographs were provided in which third parties are present. They, like all the photographs the applicant presented, are unannotated. Thus the Tribunal has no specific information about who is in the photographs, when they were taken or on what occasions. Hence the Tribunal is unaware whether Mr Ali, Ms Bushra or Mr Abbas appear in any of them. However, the few photographs in which there a third parties present appear to be of the parties’ marriage at the registry and what appears to be the sponsor’s daughter’s 18^th birthday celebration.

22. Asked at the hearing about any other social recognition of their relationship from other people or organisations such as government departments or employers, the sponsor merely replied vaguely that everyone was aware and referred to family and friends. The applicant replied that all his friends and his workplace were aware that the parties were married.

23. Overall, there is some limited but not compelling evidence that the parties represent themselves to friends as being married to each other.

24. In their undated written statements, the parties claimed that they celebrated holidays together but provided no details about those holidays or how they celebrate them. They claimed they both believed in making the most out of life and enjoying the time they had but did not say how. The Tribunal gives no weight to these vague statements.

25. In the statutory declarations the parties made on 30 September 2022 the parties stated that when they had free time they watched movies at the cinema. In the written statement the sponsor made on 21 February 2024 she claimed the parties enjoyed grocery shopping. The parties made similar claims about their joint social activity at the hearing. A number of the photographs the applicant presented appear to show the parties at cinemas and shopping centres. Most of the other photographs are of the parties alone. Most appear very posed but show the parties in various settings. In the less posed photographs the parties appear at ease and familiar with each other. The Tribunal has given some limited weight to the photographic evidence.

26. Thus, while there is no evidence of recognition of the parties’ marriage by members of their family there is some albeit not particularly compelling evidence from friends and photographs to indicate that the parties’ relationship is genuine and that they undertake social activities together.

1. Nature of persons' commitment to each other. The parties have now been married for what is approaching 5 years. This is a substantial period of time. The evidence indicates that they have lived together since 30 January 2020 except for one month from late March to late April 2022 and about 9 months last year. This total period of about 3½  years is a significant period of time.

2. In their undated statements the parties said they planned to open a grocery store once they have sufficient funds. This indicates a major commitment and long term plan but it has not eventuated. In their statutory declarations the parties declared that they were committed to spending the rest of their lives together. In the statutory declaration the applicant made on 1 April 2022 he said the parties would stick by each other through every hardship. The parties did not give any specific examples of hardships they had endured or emotional support they had provided each other. In her written statement of 21 February 2024, the sponsor said that the parties relationship had flourished since 2019 and theirs was a journey of mutual respect and understanding. She spoke of the applicant as being caring and a strength but did not give any specific examples to illustrate the claimed mutual respect and understanding or the care and support the applicant had provided her. Without examples and details such statements are merely vague assertions which the Tribunal gives no weight to.

3. Other evidence, most notably the Provisional ADVO, undermines the picture the sponsor painted of her relationship with the applicant in her written statement of 21 February 2024. Asked about this at the hearing the sponsor said that there had not been any difficulties in her relationship with the applicant other than in connection with the Provisional ADVO, she believed the applicant had always been genuine, and she had always been 100% committed to her relationship with the applicant. This however is contradicted by the following information provided to the Department:

   a.on 17 October 2021 the sponsor expressed uncertainty about her relationship with the applicant,

   b.on 12 December 2021 the sponsor stated that her relationship with the applicant was not going well, 

   c.on 28 February 2022 the sponsor expressed that her relationship with the applicant was not going well, and

   d.on 27 April 2022 the sponsor was of the view that the applicant was using her for a permanent resident visa, her friend Ayesha had told her that the applicant was using her for that reason, the applicant had asked Ayesha to marry him, and he had asked Ayesha whether there was a possibility to get married and get a PR [which the Tribunal understands is a reference to permanent residence].

4. The above information was put to the applicant in the s 359A invitation. He responded that arguments between family members occur and despite disagreements the parties were committed to a meaningful relationship. The applicant also claimed that the sponsor had suspected an extra-marital affair between the applicant and Ayesha. He claimed the sponsor informed the applicant that Ayesha liked him and Ayesha had tried to cause misunderstandings between the sponsor and the applicant, and that Ayesha subsequently admitted to this and apologised to the sponsor. These explanations do not however address the inconsistency in the sponsor’s evidence that there had been no difficulties in the relationship other than in connection with the ADVO. The information provided to the Department indicates that over a 6-month period between October 2021 and April 2022 which includes a period when the applicant moved out of the parties claimed home that there had been issues in the relationship such that she felt uncertain about the relationship. There is no indication of any such doubts or issues in her written statement. The Tribunal accepts that spouses in a genuine relationship can have issues and difficulties which can give rise to periods of separation. However, the Tribunal considers the description of the parties’ relationship which the sponsor gave in her statement of 21 February 2024 and her oral evidence that the parties had no difficulties in their relationship besides those related to the Provisional ADVO was false or, at the least, misleading. In relation to the sponsor’s doubts about the parties’ relationship it does not necessarily follow that the sponsor was not committed to the relationship. Nor does it follow that the applicant was not genuine or committed even if one of the reasons he entered the marriage was to obtain permanent residence.

5. The Department had made three requests to the applicant to provide evidence of online communication, chat records, and text messages between the parties to demonstrate their commitment to each other. No such evidence has been provided.  At the hearing the parties were given the opportunity to provide further evidence about their commitment to each other, the companionship and emotional support they provide to each other. They both gave the example that the applicant emotionally supported the sponsor when her mother was murdered. One example over the course of a 5-year marriage is not compelling however the parties’ evidence about this appeared to the Tribunal to be genuine.

6. Asked at the hearing about their future plans, the parties stated that they hoped to purchase a property together in Melbourne because it was more affordable there. There is no supporting documentary evidence to indicate that they have saved towards this claimed goal. The sponsor stated that another option was a business. As noted the parties had previously claimed a grocery store was a future plan. No apparent progress has been made towards either of these goals.

7. Overall, the length of the parties’ marriage, their period of cohabitation, the consistency in their evidence about their long-term plans, and the support the applicant provided to the sponsor in relation to the death of her mother is indicative of a genuine and continuing relationship.

8. Any other circumstances of the relationship The parties’ evidence about when they met has not been consistent. In the visa application form the applicant said they met in Sydney on 31 July 2018. However, in their undated written statements they claim they had known each other since 2019. This was further contradicted by the parties in their oral evidence. The applicant stated that the parties began communicating by telephone in October 2018 and met in Sydney at the beginning of 2019. The sponsor also stated at the hearing that the parties met in person in January 2019. The Tribunal does not believe that the parties have given a truthful account of when came to know each other and when they met in person.

   Conclusion – s 5F

9. The Tribunal has concluded that the applicant and sponsor have knowingly given false and misleading evidence about various significant aspects of their relationship. This has raised doubts about the nature of the parties’ relationship. However, it does not necessarily follow that their relationship is not genuine. The evidence presented about the individual matters referred to in reg 1.15A(3) is generally not compelling. Despite many requests and opportunities to provide documentary and photographic evidence about those matters, the evidence provided by the applicant is limited. Nevertheless, having regard to the totality of the evidence about the parties’ relationship and the matters in reg 1.15A(3) the Tribunal is satisfied that at the time of application the parties had a mutual commitment to a shared life to the exclusion of others, their relationship was a genuine and continuing relationship, and they were living together.

10. The Tribunal thus finds that the requirements of s 5F(2) are met at the time the visa application was made and hence the applicant was the spouse, as defined in s 5F, of the sponsor at the time of application.

    Finding - spouse / de facto criterion

11. Based on the copy of the visa grant notice the sponsor was an Australian permanent resident at the time of application. The applicant was thus the spouse of an Australian permanent resident at the time of application and hence meets the requirements of cl 820.211(2)(a)(i).

12. The appropriate course is thus to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 820 visa.

    DECISION

13. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criterion for a Subclass 820 (Partner) visa:

    ·cl 820.211(2)(a)(i) of Schedule 2 to the Regulations

    Mila Foster

    
    

    Member

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).