Kakar (Migration)

[2021] AATA 3944

Kakar (Migration) [2021] AATA 3944 (27 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Farozan Kakar

VISA APPLICANT:  Mr Bilal Asad

CASE NUMBER:  1920377

DIBP REFERENCE(S):  BCC2018/1067676

MEMBER:Peter Vlahos

DATE:27 July 2021

PLACE OF DECISION:  Melbourne

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

·cl.309.211of Schedule 2 to the Regulations

This Statement was made on 27 July 2021 at 8.00PM

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – age difference – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 309.211

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 Immigration on 19 July 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 5 March 2018 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied the couple were in a genuine spousal relationship.

4. The review applicant appeared before the Tribunal on 12 July 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Bilal Asad (the visa applicant) via telephone link from Pakistan.

5. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the couple were in a genuine spousal relationship as is defined by s.5F of the Act.

   Whether the parties are in a spouse or de facto relationship

8. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

9. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties signed their commitment at a Nikah ceremony on 13 October 2017. The delegate accepted this as evidence of a valid marriage as does the Tribunal. On the evidence, the parties were married to each other under a marriage that was valid for the purposes of the Act as required by s. 5F(2)(a).[1] On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).

    [1] The Tribunal noted that the delegate stated the following in his decision record: “Based on the Marriage Registration Certificate issued by the Government of Punjab, Pakistan, I (the delegate) am satisfied that this marriage is valid for the purposes of the Migration Act and the applicant therefore meets paragraph 5F(2)(a) of the Act.” see Record of Decision dated 19 July 2019 in Department’s File, BCC2018/1067676.

    Are the other requirements for a spouse relationship met?

11. In forming an opinion whether they (the couple) are in a spousal relationship, consideration must be given to all the circumstances of the relationship. This includes evidence of the financial and social aspects, the nature of the visa applicant’s and review applicant’s household and their commitment as set out in r.1.15A which is attached to this decision.

12. The applicant lodged a valid application for a Class UF Partner (Provisional) and BC Partner (Migrant) visa on 6 March 2018 on the grounds of being in a spousal relationship with an Australian Citizen.

13. The applicant (visa), Bilal Asad, is a 33-year-old national of Pakistan who has declared no previous relationship. The sponsor (wife), the review applicant, Ms Farozan Kakar is a 44-year-old Afghan born national who is now an Australian citizen. She gained her citizenship on 11 March 1993. She has declared one previous relationship and has been divorced and has six children from that previous relationship.

14. The Tribunal has had the opportunity of observing material and evidence that has not been provided to the delegate from the visa applicant and the review applicant and has had the opportunity to examine and hear all parties concerning this information.

    The financial aspects of the relationship

15. The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, especially in relation to major commitments, whether – the visa applicant or the sponsor/review applicant owes any legal obligations in respect to the other on the basis of any sharing of day-to-day household expenses.

16. The Tribunal also acknowledges that the visa applicant and sponsor (wife), the review applicant are living in different countries and it is reasonable to expect each would maintain their own financial arrangements.

17. The Tribunal noted as the delegate did, that the applicant had provided five money transfers. Three of these receipts are from the applicant to the sponsor. They record that the applicant transferred money on 16 February 2018, 17 February 2018 and 20 February 2018 to a total of AUD$7, 503.59. As it was confirmed to the delegate to the delegate at the visa application interview and later, to the Tribunal at the hearing, this money was for the visa application fee. It was also confirmed that the other two receipts recorded money transferred from the review applicant (sponsor – wife) to the applicant – on the following dates – 6 July 2018 and 21 July 2018 totalling AUD$678.00. The visa applicant and sponsor confirmed to the Tribunal that at certain times since the initial amounts were transferred, the visa applicant has provided to the review applicant various amounts “when he could.” These amounts were AUS$200 and AUD$500.00 are saved by the applicant (visa) and sent to the sponsor/wife. It was also explained to the Tribunal by the wife that her preference was for her husband to work (as he did) and to save his money for the later needs of the couple. The Tribunal was also told that the wife was in receipt of ‘Centrelink payments’ and also was assisted in any needs that she might have by her ‘three sons’ who are working. She also told the Tribunal that she practically owns her home – owing only ‘less than 5% of the mortgage’. The wife also told the Tribunal that when her husband comes to live with her in Australia, he will live in her home with her sons – one family.

18. The Tribunal noted from the evidence provided by the parties to the Tribunal that exchanges of small amounts of money have been provided by the husband (visa applicant) to his wife in Australia – acting as it was explained to the Tribunal examples not of maintenance but a recognition of the love and affection the applicant maintained for his wife. The Tribunal is cognizant of the fact that the wife is in a position of independence – financially speaking. In the circumstances, the parties have understood their relative positions and the fact that the two currently reside a great distance apart from each other. The Tribunal understands and accepts the parties’ explanations and accepts the wife’s evidence that she would prefer her husband to save his earned wages for their later use when he comes to live with her in Australia. It is evidence, in the opinion of the Tribunal that there is an acceptance by the two to pool their finances in the near future – when they are together.

19. The wife told the Tribunal that there was ‘rental property’ (property rented by the husband) in Pakistan and was the place where she and her husband cohabited when last together in 2019.

20. Though the parties have not provided satisfactory evidence to support the claim that their finances are in someway pooled, the understanding does exist between them, that the husband’s wages earned from his employment fulfill the parties’ rental obligations in Pakistan and to allow the husband’s savings to be saved (what is left) to be utilised for their (couple’s) mutual benefit when he arrives to live in Australia.

21. Nevertheless, there is no evidence of joint ownership of assets or joint liabilities. There is no evidence of any legal obligations owed to one another currently.

22. This aspect of the relationship because the parties are currently residing in different countries has not been satisfactorily met.

    The nature of the household

23. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, living arrangements and any sharing of the responsibility for housework.

24. The applicant and his wife were legally married on 13 October 2017 but did not hold any other function apart from their Nikah ceremony and a small celebratory dinner after the signing ceremony.

25. The applicant and the wife confirmed in their oral evidence before the Tribunal that they cohabitated together from 13 October 2017 until the wife returned to Australia on 23 October 2017 (with her daughter). Both acknowledged that this was only for a brief period of ten (10) days. However, while the wife acknowledged she and her husband wished the period together should have been longer, the child (daughter) had to return to school and this required the wife to return to Australia.

26. Both applicant and the sponsor acknowledged that they spent some time together at a local hotel (nuptial night) at the “PC” hotel in the city of Lahore and then for a few more days at “Royal Hayat Hotel” in Johore town, Lahore, Pakistan. The Tribunal noted that the delegate considered this period when the couple were together was not (in his opinion) a significant period for him to consider the establishment of a ‘household’ together, evidence was provided by both the sponsor and the applicant before the Tribunal in which the sponsor travelled to Pakistan in 2019 and stayed with her husband for ‘three weeks’. In these three weeks together, the applicant and sponsor cohabited together and ‘rented a property’ to live together in Lahore.

27. In that time together, the applicant and sponsor told the Tribunal they discussed many issues concerning their life together in future and the issue of the children.

28. The applicant told the Tribunal that he constantly asks about his ‘adopted daughter’ the ‘youngest child’ of the sponsor and the only child he has met in person. His interest also extends to the other older children and constantly discusses their concerns with his sponsor, wife. The familiarity with his new family is also evidenced by video calls[2] which are made between the parties and these have been particularly of assistance to the younger daughter.

    [2] see AAT File for transcript evidence of video calls between the parties.

29. The sponsor told the Tribunal that the children have had no interaction with their natural father and have come to consider the applicant a ‘father-like figure’ and look forward to having him in Australia. This is more evident, according to sponsor/wife in her daughter who has met and been with the applicant.

30. The Tribunal gives regard to the evidence provided by the parties and concludes that the parties have the basis (at least from 2019) of a household together. The parties gave a consistent account of their daily life and routine when together in Lahore in 2019 and provided the Tribunal with a reasonable understanding that they exchange on a regular basis even at a distance their views and concerns about their family.

31. The Tribunal finds that the parties have lived together while the two were together in Lahore, Pakistan in 2019.

32. It is not submitted that the applicant has the formal care or guardianship of any under-age child, though he provides guidance an opinion on the applicant’s young daughter’s welfare and considers her like his own child. 

33. The Tribunal accepts the parties have lived at rented premises in Lahore, in 2019 when the sponsor travelled to Pakistan and remained in Pakistan for three weeks. Moreover, the Tribunal having received evidence from all parties accepts that the sponsor and applicant have every intention of maintaining their household as before the sponsor left for Australia in 2019 after having lived with the applicant in 2019.

34. The Tribunal gives weight to this evidence.

    Social Aspects of the relationship

35. The Tribunal has also considered the social aspects of the relationship including whether the applicant and sponsor represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship and the basis on which the applicant and sponsor plan and undertake joint social activities.

36. As previously noted by the Tribunal, both the applicant and the sponsor were married on 13 October 2017 under Islamic Law and declared their marriage to the authorities in Pakistan, they have also provided photographs of the Nikah ceremony which the Tribunal acknowledges and is evidence that their commitment is open and public for family and friends to know.

37. The applicant told the Tribunal that few photographs were taken because his family is ‘very conservative’ and did not care to advertise his nuptials to the wider community. Nevertheless, the Tribunal was told that the applicant’s family had ‘no issue’ with the marriage and allowed the applicant to ‘make his choice’ of wife. However, the applicant and his sponsor/wife have provided a number of photographs with family and friends while they were both together in Pakistan in 2019 which record that the relationship was widely known by family and friends and that the couple socialised openly when together.[3]

    [3] see AAT File, Applicant’s submission dated 6 January 2020.

38. The applicant and the sponsor/wife have also submitted two Form 888 declarations from Ms Zala Kakar, the younger sister of the sponsor/wife who deposes that she ‘knew the applicant for nine months’ and from Ms Annilla Achna, a niece of the sponsor who deposes to know the applicant for ‘eight months’ and both confirm that ‘they know the applicant and sponsor are a couple.’ The Tribunal noted that both declarants provided reasons as to why they believe the relationship was genuine and one that would continue. The Tribunal gives these declarations weight as to their observation of the relationship between the applicant and the sponsor/wife. Furthermore, and in support of the application, the applicant submitted two affidavits from Pakistan. The first affidavit is in the name of Sajeel Khan who identifies himself as a ‘close friend and has known the applicant for over twenty years’. The second affidavit is from the applicant’s elder brother, who attended the Nikah signing ceremony in October 2017. Both of the affidavits confirm that the deponents were aware of the relationship between the applicant and sponsor.

39. The Tribunal noted at the hearing – the concerns noted by the delegate concerning the ‘inconsistencies’ as they were described in the evidence provided by the two parties at the interview. Of particular concern was as to who actually attended the Nikah signing ceremony. Also, there was concern that the sponsor/wife did not meet the parents of the applicant. Both applicants told the Tribunal that in October 2017 matters were done in a very short period of time and meeting all the family was not possible. Indeed, the sponsor/wife had a young child with her and had to also return to Australia. Nevertheless, the issues of not meeting the family were remedied with the three weeks the applicant spent in Pakistan in 2019. Moreover, the applicant and the sponsor had scheduled a further reunion in 2020 but the Covid-19 Pandemic stopped such a trip.  

40. There, (in Pakistan) the relationship was also on display according to the evidence provided by the parties which the Tribunal accepts as credible. Indeed, the applicant’s family may have (as the applicant stated) been ‘conservative’ but they had not stopped their son from marrying a woman they had the opportunity to meet in 2019. Indeed, the couple’s relationship is supported by all family members in Pakistan and in Australia.

41. The Tribunal finds there is social recognition of the marriage and gives weight to this aspect of the application.

    Nature of persons’ commitment to each other

42. The couple have known each other since April 2017 and made a mutual decision to enter into a relationship very soon after they got to know each other via a Muslim dating site on the internet. The Tribunal accepts the parties’ account of how they met each other and how the relationship commenced and that the parties committed to each other in October 2017 and spent a considerable period of time when they reunited again in 2019 in Pakistan.

43. The Tribunal also accepts that the parties lived together on in 2019 when the sponsor visited the applicant in Pakistan. The Tribunal also accepts that though separated, the parties still communicate closely on all aspects of their relationship daily. The Tribunal concedes that the relationship has had its challenges – (i) distance and (ii) the Covid-19 Pandemic in recent times – separating them for more than two years since their last meeting in Pakistan 2019.

44. The sponsor has visited the applicant’s family in Pakistan.

45. Moreover, the sponsor has excused the applicant’s family from making any payments of a ‘dowry’ as it was custom for a wife to request from her husband and his family. The applicant said to the Tribunal that he wants to have ‘a good marriage’, is ‘family minded’ and looks forward to being a ‘support to his wife’ and a ‘father-figure’ to the family. The applicant was asked by the Tribunal of the ‘age difference’ between him and his sponsor (being his senior). His response was that the ‘age difference’ was not an issue for him. Both applicants told the Tribunal they originate from ‘large families’ and are prepared and understand how to deal with the multitude of issues that might occur when they are together. What was important that each other wanted the marriage to succeed. What was important to the applicant to be a support to his wife who has a ‘young child’ to take care of.

1. The couple support one another in their daily life. Their friends support them in their married life and they both have expressed a commitment to each other for life. The Tribunal finds that there is evidence of a long-term commitment to a spousal relationship. 

2. Having had regard to the financial aspects, the nature of the household, the social aspects and the nature of the persons’ commitment to each other, the Tribunal considers these findings together demonstrate that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that they show that the relationship is genuine and continuing. Therefore, the Tribunal have lived together and will live together in the immediate future. They therefore meet the requirements of s.5F for a spousal relationship.

3. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship.

4. Based on the above, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

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

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

   DECISION

7. 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

   Peter Vlahos
   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).