Iqbal (Migration)

[2021] AATA 5546

Iqbal (Migration) [2021] AATA 5546 (13 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Habib Iqbal

CASE NUMBER:  1813427

DIBP REFERENCE(S):  BCC2016/3251679

MEMBER:M. Edgoose

DATE:13 December 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

Statement made on 13 December 2021 at 11:55am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – alleged family violence – whether genuine spousal relationship existed – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 820.211, 820.221

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 1 May 2018 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 30 September 2016 on the basis of his relationship with his sponsor, Ms Lul Hussein Mohamud. At that time, Class UK contained Subclass 820. The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. 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. Relevantly to this matter the primary criteria include cl 820.211 require that at the time of application the applicant to be the spouse or de facto partner of the sponsor, unless the relationship has ceased, and certain circumstances exist. These include that the applicant, or a member of the family unit, has suffered family violence committed by the sponsor: cl 820.211(8) or (9) and cl 820.221(3)(a) and (3)(b)(i). The applicant claims this occurred in this case.

4. The delegate refused to grant the visa on the basis that the applicant did not meet cl 820.211(2)(a), as the delegate was not satisfied that the applicant was in a genuine and continuing spouse relationship at the time of the visa application, pursuant to s 5F of the Act.

5. The applicant appeared before the Tribunal on 9 December 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Waleed Iqbal the brother of the applicant, Mr Mahammad Rizwan Nadeem a friend of the applicant and Mr Muhammad Asim Mumtaz a friend of the applicant.  

6. The applicant was represented in relation to the review by his representative.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background of the applicant

8. The applicant arrived in Australia on 7 August 2015 on a Student Visa to study a Master of Professional Accounting. The applicant stated in his Statutory Declaration dated 13 July 2017 that he never completed the course for which he was granted his Student Visa and that he would like to find work in his field of Chemical Engineering.  The applicant confirmed at hearing that had not completed any of the courses he was enrolled in.

9. On arrival in Australia the applicant lived with his brother Waleed Iqbal. His brother was in Australia on a Student Visa studying for a Certificate level course in the areas of Pastry and Bakery and according to the applicant’s Statutory Declaration had met the sponsor at a New Year’s Eve party. Soon after his arrival in Australia the applicant was introduced to the sponsor.

10. On 12 September 2015, just over one month after arriving in Australia the applicant married the sponsor. The claimed relationship ended in March 2017.    

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. In the present case, the applicant claims the relationship with Ms Lul Hussein Mohamud the visa sponsor has ceased, and he has been the victim of family violence.

12. In order for the applicant to be granted a Partner (Temporary) (Class UK) (Subclass 820) visa without being the spouse or de facto partner of his sponsoring partner at the time of decision and on the basis of having been the victim of family violence, the applicant must meet cl.820.221(3). This requires that the applicant was in a genuine and continuing relationship with the sponsoring partner at the time of application, and that relationship since ceased and the applicant has suffered family violence committed by the sponsoring partner.

13. As such, prior to any consideration of whether the applicant was the victim of family violence, the Tribunal must first consider whether the applicant was in a genuine and ongoing relationship with his sponsoring partner.

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). 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 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?

15. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant submitted to the Department a copy of the marriage certificate. The marriage certificate indicates that the marriage took place on 12 September 2015 at 8 French Avenue, Bankstown, New South Wales. On the evidence, the Tribunal is satisfied that 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).

16. The Tribunal will now consider whether the requirements for a spouse relationship are met according to reg 1.15A(3).

17. At hearing the Tribunal asked the applicant if the content of the Statutory Declaration he had made on 13 July 2017 still true and current. The applicant responded yes except for how he met the sponsor. The Tribunal has made findings in relation to this claim within this decision.

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

18. The applicant provided limited oral evidence and documentation to the Tribunal regarding the financial aspects of the relationship. The applicant stated to the Tribunal that they had no joint ownership of real estate or other major assets, nor any joint liabilities, and that neither the applicant nor the sponsor in the relationship owes any legal obligation in respect of the other.

19. The applicant claimed in paragraph 12 of his Statutory Declaration dated 13 July 2017 that for a short period of time they had a joint bank account however no evidence of this account was submitted to the Tribunal. At hearing the applicant confirmed that for a short period of time he and the sponsor had a joint bank account. The applicant confirmed to the Tribunal that no evidence of the claimed joint bank account had been submitted to the Tribunal or the Department.  Given the lack of evidence the Tribunal places no weight on the claim of a joint bank account. 

20. Prior to the hearing the applicant provided the Tribunal with evidence of his individual CBA bank account with an account number ending in 989. Based on the transaction history of the CBA statements the Tribunal is not satisfied that the applicant’s individual account has been used between the applicant and sponsor as a joint account. The Tribunal notes that the sponsor on occasions made deposits into the applicant’s individual bank account for fuel, shopping, bills and other matters. On several occasions the applicant made transfers to the sponsor. Although transfers have taken place between the applicant and sponsor the Tribunal is of the view that these transfers do not constitute pooling of financial resources.

21. The Tribunal acknowledges that regular transfers were made by the sponsor for rental payments. Whilst these transfers may indicate co-habitation, as well as joint financial responsibility, this does not necessarily mean the existence of a genuine relationship, or the pooling of resources.

22. The Tribunal further notes that regular deposits into the applicant’s CBA individual account were made from his employer, a Muhammad Aamir, and his brother Waleed Iqbal. The applicant confirmed at hearing that his employer at the time, Muhammad Aamir, and his brother Waleed Iqbal had made regular deposits into his account.

23. The applicant’s representative stated in his submission dated 2 December 2021 that the applicant and sponsor were financially responsible while living together. The Tribunal does not accept the representative’s submission that the applicant and sponsor were financially responsible while living together given the NCAT outcome below and the limited evidence of joint financial responsibility. Given this the Tribunal places little weight on the representative’s submission regarding the financial aspects of the relationship. 

24. Prior to the hearing the applicant submitted to the Tribunal via his representative several rental receipts, a gym membership receipt, a residential tenancy agreement in joint names, a photo card of the applicant and a Notice of Order from NCAT dated 28 June 2017. The Tribunal notes of the evidence submitted the rental receipts, the residential tenancy agreement and the Notice of Order from NCAT were in joint names. The Tribunal notes that the rental receipts were duplicated and were for a property at 13/46 Mayfield Street, Wentworthville from 1 June 2016 until 14 June 2016 in the sum of AUD980 per fortnight. The other document for this property was an invoice for garden maintenance dated 4 January 2017. By this time the applicant had vacated this property and moved into 6/57 Harrow Road. The residential tenancy agreement was for the property at 6/57 Harrow Road Auburn NSW 2144 was from 1 December 2016 until 31 May 2017 at AUD$500 per week. This agreement was only for a period of 26 weeks. On 28 June 2017 NCAT placed an order on the Harrow Road property as the applicant had not paid the required rent. He and the sponsor were ordered to pay the amount of AUD3,607.11 immediately. Based on the evidence provided the Tribunal does not accept that the applicant and sponsor were financially responsible while cohabitating.

25. The Tribunal has given due consideration to the limited evidence provided to the Tribunal regarding the financial aspects of the relationship at the time of application. The Tribunal therefore finds that the financial aspects of the relationship do not attest to the applicant and sponsor being in a genuine and continuing relationship and that they had a mutual commitment to a shared life as a married couple to the exclusion of all other at the time of the visa application.

    Nature of the household

26. The applicant said to the Tribunal at hearing that at time of application they had had no children together however the sponsor had 4 children of her own from previous relationships. The applicant informed the Tribunal that the sponsor’s children are aged, 6, 7, 8 and 11. At hearing the applicant claimed that at the time of application he shared joint responsibility for the care and support of the sponsors children. The only physical evidence of the applicant spending time with the sponsors children was the small number of photos that were submitted to the Tribunal. Based on the limited evidence the Tribunal does not accept that the applicant shared joint responsibility for care and support of the sponsors 4 children.

27. The applicant claimed at hearing that he and the sponsor were planning to have a child of their own and that they had started the relevant process. The Tribunal acknowledges that several emails and doctors’ statements were submitted to the Tribunal that the applicant and sponsor were in the process of starting IVF treatments to possibly have a child of their own. The applicant stated in his Statutory Declaration at paragraph 17 that he and the sponsor had decided to have a child at the end of 2016 and that in January 2017 as a couple they attended a Fertility Centre in Liverpool. The applicant stated that he had sperm taken at this time which was then frozen and that the sponsor was going to be inseminated. The applicant claimed in paragraph 18 of his Statutory Declaration that the sponsor had paid around AUD1,500 for the procedure and that she didn’t get it done. The applicant claimed that the sponsor was not happy with the fees and told the applicant that if he wanted a baby, that he pays for it. Based on the wording of the applicant’s statutory declaration it would appear that the applicant was expecting for the sponsor to pay for all of the medical undertaking herself and that it had not been a joint decision. The Tribunal is of the view if the couple were in a genuine and continuing relationship at time of application the couple would have worked together emotionally and financially to support each other through this process. For these reasons the Tribunal places limited weight on this claim. 

28. At time of application the applicant claims as a couple they had lived at two different addresses. The first being 5/28 Naiper Avenue, Lurnea, NSW, between 19 September 2015 until 17 May 2016 and then at 13/46 Mayfield Street, Wentworthville, NSW, between 18 May 2016 and 17 November 2016. Following the visa applicant being lodged the applicant claims to have lived at 6/57 Harrow Road, Auburn, NSW, from 1 December 2016 until 23 March 2017. The applicant informed the Tribunal that his name was not added to the lease for the Naiper Avenue as the sponsor intended to move after they were married. The applicant claims that the sponsors children lived with them at each of the addresses supplied and that they shared the responsibility for housework. The representative’s submission states that the applicant was responsible for grocery shopping and car maintenance and that the sponsor was responsible for cleaning and laundry. The representative’s submission further stated that the applicant would pick up the children from school, help them with homework and signed them up for some online learning such as The Study Ladder. The applicant’s Statutory Declaration dated 13 July 2017 provided a similar account that he would take care of the children after school and that he would generally feed them. He stated that they mainly ate take away for dinner and that he worked evenings and the sponsor work during the day.  The applicant confirmed the above information at hearing and that he also liked cooking. The applicant further confirmed that the sponsor worked during the day and that he worked at night. Although the applicant has provided some description of the living arrangements and the sharing of responsibility for housework the Tribunal is not satisfied that at time of application the applicant and sponsor were in a genuine and continuing relationship and that they had a mutual commitment to a shared life as a married couple to the exclusion of all others based on the evidence provided. 

    Social aspects of the relationship

29. The Tribunal has assessed the social aspects of this relationship. There is limited evidence before the Tribunal on how the applicant and sponsor presented themselves to other people given that they were married. At hearing the applicant informed the Tribunal that he wore a wedding ring that indicated to others that he was married. The applicant claimed at hearing that his friends and acquaintances were of the opinion that he and the sponsor were in a genuine relationship.

30. The applicant claimed at hearing that he had travelled to Canberra and a range of different locations with the sponsor and her children. The applicant submitted receipts for going to the cinema and photos of himself with the sponsor and her children at a bowling alley. The Tribunal notes that the photos that were submitted to the Tribunal were photos of the applicant, the sponsor and her children and the applicant’s brother.

31. The Tribunal has also given regard to the two statutory declarations that were submitted to the Department at time application and another from your brother Waleed attesting to the relationship. One of the statutory declarations stated that he had known you for about 5 months and that he had met your wife a few times. The second statutory declaration stated that she had know the sponsor since 2003 and that the applicant was her husband. The third statutory declaration was from the applicant’s brother Waleed. The Tribunal notes that the three statutory declarations provided limited information that the relationship was genuine and continuing and that the couple had a mutual commitment to a shared life as a married couple to the exclusion to all others. 

32. Post hearing on 13 December 2021 the applicant via his representative submitted to the Tribunal five Facebook screenshots one of which was doubled up. The Tribunal notes that the screenshots were from the applicants Facebook page with a picture of a Banana Split dated 3 June 2016 which the applicant captioned ‘with my wife’.  However, the screenshot did not show his wife. This Banana Split screenshot was double up. The second screenshot was of the sponsor dated 26 November 2016 and captioned ‘My love my life my wife’. The third screenshot dated 12 September 2015 was changing his status to Got Married September 11, 2015 and the final screenshot was titled watching Batman v Superman: Dawn of Justice at Dumaresq Street Cinema on 27 March 2016 and the caption said, ‘With my family’. The Tribunal does not consider that these snapshots display that the applicant was in a genuine relationship with the sponsor. Given this the Tribunal places little weight on this submission.   

33. Given the limited evidence provided the Tribunal places limited weight on the photos and the statutory declarations. The Tribunal is not satisfied that the social aspects of the relationship attest to the couple being in a genuine and continuing relationship at time of application.

    Nature of persons' commitment to each other

34. The applicant has provided conflicting information on how he and the sponsor first met. Prior to the hearing the applicant’s representative made a submission to the Tribunal dated 2 December 2021 and attached to that submission were a number of annexures including a signed Statutory Declaration from the applicant dated 13 July 2017. At paragraph 4 of the applicant’s Statutory Declaration, he stated

    My brother introduced me to my wife Lul Hussein Mohamud to me in August 2015. They met some time back at a New Year’s party, at a mutual friends place in Melbourne. Lul and I started communicating via phone and text messages.

    However, the representative’s submission dated 2 December 2021 stated that

    The Applicant and Sponsor met through an online dating app called ‘Tango’ in August 2015.

    At hearing the applicant told the Tribunal that the Statutory Declaration was true and correct except for how he first met the applicant. The Tribunal notes that his brother Mr Waleed Iqbal also told the Tribunal at hearing that his brother had met the applicant on Tango. Given that the applicant had signed a Statutory Declaration on 13 July 2017 stating how he had met the sponsor and now over 4 years later has completely changed how he met the sponsor. The applicant has had over 4 years to submit an updated statutory declaration to the Tribunal and the Department and chose not to do so. Instead, he has waited until his Tribunal hearing and instructed his representative to make such a submission with the change of how he met the sponsor.

1. Given the inconsistent evidence provided by the applicant within his Statutory Declaration dated 13 July 2017 and the representative’s submission dated 2 December 2021 and the oral evidence provided at hearing the Tribunal has genuine concerns about the applicant’s credibility and for these reasons the Tribunal gives this claim limited weight.

2. At hearing the applicant informed the Tribunal he arrived in Australia on 7 August 2015 on a Student visa. On 13 or 14 August 2015 the applicant claims to have met the sponsor online. On 12 September 2015 the applicant married the sponsor. The applicant told the Tribunal that only 4 people attended the wedding, himself, the sponsor, his brother and the sponsor’s cousin. The applicant claimed at hearing that from 12 September 2015 until late March 2017 he lived with the sponsor and her 4 children. He further informed the Tribunal that as a couple they emotionally were really good and that they had a good time at home. The applicant further informed the Tribunal that he saw the relationship as a long term one. The applicant’s final comment to the Tribunal was that he tried his best to save the relationship and decided when the sponsor became aggressive the relationship was over.  

3. Given the limited physical and oral evidence provided the Tribunal places limited weight on the overall nature of the commitment to each other. The Tribunal is not satisfied that the nature of persons' commitment to each other attest to the couple being in a genuine and continuing relationship and a mutual commitment to a shared life as a married couple to the exclusion of all others at time of application.

4. Witness Mr Waleed Iqbal submitted a Statutory Declaration to the Department dated 19 September 2016 at time of the visa application and provided oral evidence at the hearing in support of his brother. Mr Iqbal stated to the Tribunal that his Statutory Declaration was still true and correct at the time of the Tribunal hearing. Mr Iqbal said to the Tribunal that his brother’s relationship with the sponsor was genuine, they were happy living together, that he attended the wedding and spent time with the sponsors children. He also mentioned that his brother met the sponsor on Tango. Based on Mr Iqbal’s oral evidence at hearing and the limited information provided in his Statutory Declaration dated 19 September 2019 the Tribunal gives his submissions and evidence limited weight. 

5. Witness Mr Muhammad Asim Mumtaz, a friend of the applicant, gave oral evidence at the Tribunal hearing and also provided a Statutory Declaration dated 19 July 2021. Mr Mumtaz informed the Tribunal that his Statutory Declaration was still true and correct. Mr Mumtaz said to the Tribunal that he had known the applicant back in Pakistan. Mr Mumtaz was based in Sydney when the applicant moved to Sydney to marry the sponsor and was invited to the marriage celebration but did not attend. Mr Mumtaz claims to have met the applicant and sponsor on several occasions when he was invited to their home.  Mr Mumtaz relocated to South Australia in later 2018 for migration purposes however believes the relationship between the applicant and sponsor was genuine. Given the limited evidence Mr Mumtaz provided the Tribunal at hearing and within his Statutory Declaration the Tribunal gives his submissions and evidence little weight.

6. Mr Mahammad Rizwan Nadeem a friend of the applicant, gave oral evidence at the Tribunal hearing and also provided a Statutory Declaration dated 19 July 2021. Mr Nadeem informed the Tribunal that he had known the applicant since 2009 from back in Pakistan that he had arrived in Australia on a Student Visa on 5 February 2017. Mr Nadeem told the Tribunal that he had only visited the applicants house on one occasion in 2017 and that several days later the applicant separated from the sponsor. Mr Nadeem said to the Tribunal that he believed the applicant and sponsor were in a genuine relationship and that he had seen social media pictures before arrived in Australia. Given that Mr Nadeem had only visited the home of the applicant and sponsor on one occasion and had seen a number of photos on social media the Tribunal gives his evidence about the applicant being in a genuine relationship little weight.

7. On the basis of the evidence, the Tribunal is satisfied the applicant and sponsor were married to each other under a marriage that is valid for the purpose of the Act. However, based on the evidence the Tribunal is not satisfied the applicant and sponsor had a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship between them was genuine and continuing and they did not live separately and apart on a permanent basis. On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) were met at the time the visa application was made.

8. As such, the Tribunal finds that the applicant does not meet the necessary requirements for the grant of the visa. On the basis of this finding, the Tribunal does not make any finding in relation to the alleged family violence.

9. Therefore, the applicant does not meet cl 820.211.

10. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    decision

11. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa

    M. Edgoose
    Member