Kazmi (Migration)

[2023] AATA 3082

Kazmi (Migration) [2023] AATA 3082 (15 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Syed Haider Ali Kazmi

VISA APPLICANT:  Mrs Syeda Mehak Zehra Zaidi

REPRESENTATIVE:  Mr Muzamil Hafeez (MARN: 1798763)

CASE NUMBER:  2011342

DIBP REFERENCE(S):  BCC2019/3379513

MEMBER:Brendan Darcy

DATE:15 September 2023

PLACE OF DECISION:  Melbourne

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

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

·cl.309.221(1) of Schedule 2 to the Regulations.

Statement made on 15 September 2023 at 9:20am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – applicant pregnant with the sponsor’s child – pooling of financial resources – joint international travel – social recognition of the marriage – evidence of sustained communication – decision under review remitted

LEGISLATION

Marriage Act 1961, s 88
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

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 30 June 2020 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 July 2019 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 and cl. 309.221(1) because the delegate was not satisfied the visa applicant and the sponsoring partner were in a married relationship for the purposes for s 5F(2)(a) and because there was insufficient evidence that the parties were in a genuine de facto spousal relationship for the purposes of section 5F(b-d).

4. The visa applicant, Syeda Mahak Zehra Zaidi applied for the visa on 5 July 2019 on the basis of her relationship with the sponsoring partner, Syed Haider Ali Kami.  In this decision, the review applicant is to be referred to as the sponsor while the visa applicant is referred to as the applicant.

5. The review applicant was represented in relation to the review.

6. On 22 October 2021, the parties’ representative provided a legal submission with attachments. It included a copy of the sponsor’s Australian passport, his AFP police check, the applicant’s identity documents and Pakistani character document, their marriage certificate from August 2018; their family registration certificates, various Nikah/wedding photographs, evidence of joint travel, of a joint bank account and records of communication, relationship statement by the parties, and affidavits and statements by witness attesting to the relationship as genuine.

7. In April 2023, the Tribunal sought for additional information to support the parties’ application for review prior to its constitution to a Tribunal Member. On 12 May 2023, via the parties’ representative, the Tribunal received a legal submission with attachments amounting to 369 pages, including medical evidence from 2 May 2023 indicating that the applicant had been 7-weeks pregnant.

8. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether applicant was the spouse of her sponsor at the time of the application and whether she continues to be so at the time of this decision.

    Background

11. The applicant was born on 12 July 1996 in Lahore in the Islamic Republic of Pakistan (Pakistan). A copy of the applicant’s profile in her Pakistani passport, her birth registration certificate and her and her national identity card are on departmental file. 

12. The sponsor was born on 13 July 1987 in Pakistan.  He was granted permanent residency status in Australia on 26 November 2016. A copy of his birth registration certificate indicates he was born in Karachi. Australian citizenship was conferred upon the sponsor since this application was lodged. A copy of his citizenship certificate and his valid Australian passport are on the Tribunal’s file.

13. The parties claim that they are cousins and have known each other since their childhoods. In their relationship statements they have acknowledged that they are related as first cousins. Their betrothal, it is further claimed, had been arranged with their consent and they were married on 24 August 2018. Photographs of the marriage ceremony with family members as witnesses were submitted to the Department.

14. A family registration certificate issued by the Pakistani Ministry of Interior indicates the parties are a married couple. This document was issued on 26 July 2019.

15. A delegate acting on behalf of the Minister refused to grant the partner visa on 30 June 2020. The sponsor applied to have the refusal decision reviewed by the Tribunal on 8 July 2020 with the decision record attached.

    Whether the parties are in a spouse or de facto relationship

16. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the 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 was an Australian permanent resident at the time of application and is currently an Australian citizen.  

17. ‘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?

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

19. A copy of the parties’ marriage certificate and family registration certificate issued by the relevant authority in the provincial government of Punjab in Pakistan is on the department file. It indicates that the applicant and the sponsor were not married prior to the date of this marriage on 24 August 2018. 

20. The effect of s.88G of the Marriage Act is that, unless there is evidence to suggest that the key requirements for a valid marriage are not met, a foreign marriage certificate issued by the relevant authority of that country is prima facie evidence that the marriage is valid under the local law.

21. 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).

    Are the other requirements for a spouse relationship met?

22. The Tribunal has considered the evidence that was provided with the primary application but have also had the benefit of additional evidence that has been submitted to the Tribunal more recently. A summary of the evidence and the Tribunal’s assessment about whether it is satisfied about the relationship, as required under subregulations 1.15A(2) and 1.15A(3)(a), (b), (c) and (d), is set out below.

    Financial aspects of the relationship –

23. The delegate noted that there was little overall evidence the parties had pooled their financial resources or have any shared financial commitments. The delegate specifically noted that most of the remittances had been transferred from the sponsor to the applicant’s mother and not directly the applicant herself. Furthermore, the delegate identified that there was no evidence of any joint ownership of assets or any financial obligations owed to each other such as a will or superannuation has been provided.

24. Subsequently, the Tribunal has received the following claims and evidence that they share expenses:

    ·     Letters from HBL Habib Bank in Pakistan dated 31 May 2021, and 9 May 2023 evidencing a joint account in the parties’ names, which was open in January 2021 and remained active as at the date of the second letter;

    ·     Bank statements for the parties joint account for the period between January 2021 to May 2023;

    ·     Receipts evidencing the sponsor transferred approximately AUD9,491 into the parties’ joint bank account applicant between July 2019 and May 2023; and

    ·     The sponsor’s mother provided an affidavit dated 16 October 2021 stating that the parties initially had a simple wedding function due to shortage of time and resources, but they held a grander wedding function in January 2021. She also stated that after the (initial) marriage ceremony the visa applicant resided with her and her husband, the sponsor sent funds via her to support his wife and considers the visa applicant part of their family. This was to account for the earlier financial evidence the sponsor transferred approximately AUD 3,500 to his mother between August 2019 and January 2020.

25. While the evidence does not support the parties holding any joint assets or liabilities, that is not unexpected when couples are living separately while their visa application is determined. Under those circumstances, the Tribunal finds this to be understandable. The limited evidence accordingly is indicative of a spousal relationship for the purposes of r 1.15A(3)(a).

    Nature of the household

26. The delegate gave consideration towards the limited available evidence regarding the nature of the parties’ household, including utility bills addressed to the sponsor dated June 2019; and statement that they cohabited after their marriage for as little as two days; The delegate noted that there was no evidence of Rukhasati which, the delegate insisted, is an integral ceremony noting the ‘sending off’ when the groom and bride begin co-habiting or have consummated the marriage. Overall the delegate found the evidence underwhelming and insufficient.

27. The Tribunal has had the benefit to consider the evident that the sponsor return to visit his wife in Pakistan in December 2020 and that they travelled together to Iraq and Thailand between July and August 2022. 

28. As the applicant and the sponsor has been living separately while this offshore partner visa has been considered, it is not unexpected the parties have very limited evidence of sharing a common household or that they have not had formed a family. The Tribunal nonetheless places some weight on the sponsor’s remittance of money to support his spouse back in Pakistan and that the parties have subsequently spent limited time with each when it has been possible. It is the Tribunal’s understanding that in Islam the Nikah is compulsory and the Rukhasati is cultural.  The Tribunal places no adverse weight on this in assessing the genuineness of the parties’ otherwise valid marriage for the purposes of r 1.15A(3)(b), and accept the evidence as outlined above to be otherwise reliable.

    Social aspects of the relationship

29. The delegate made a finding that there is limited evidence of the social aspects of the spousal relationship. That evidence included:

    ·     The family registration certificate issued by National Database and Registration Authority in the Ministry of the Interior within the Pakistani Government;

    ·     Copies of their wedding photographs as well as photographs taken after their marriage at various social gatherings and outings, including another family wedding, shortly after the marriage in 2018; and

    ·     Statutory declarations supporting the genuine nature of the relationship, one from the sponsor’s best friend, whose wife is also friends with the visa applicant.

30. The Tribunal subsequently received additional information including:

    ·     Copies of the parties wedding invitation for a ceremony held in Pakistan in January 2021;

    ·     Plane ticket stubs, hotel receipts, food receipts, and event tickets, to demonstrate the parties joint travel, including in Pakistan, Iraq and Thailand between 2020 and 2023;

    ·     Photographs showing the parties with each other and with family members and friends, including photographs of their 2018 and 2021 wedding ceremonies, taken over a period of time (between 2018 and 2023) in Pakistan, Iraq, and Thailand;

    ·     Facebook posts appearing to demonstrate the parties were together at social functions on a variety of occasions in Pakistan and Thailand and lists of their respective friends on Facebook; and

    ·     Photographs of, and receipts for gifts said to be purchased for the visa applicant, including cosmetics, jewellery, cakes, flowers and chocolate and birthday cards to the visa applicant from the sponsor, and photographs of gifts said to be for the sponsor from the visa applicant, including clothes.

31. The Tribunal notes this marriage is claimed to be arranged which further indicates the spousal relationship to be socially sanctioned by both sides of the parties’ families. 

32. The Tribunal has taken into account they have lived separately but not necessarily permanently for most of their time married. The evidence, cumulatively considered, is that the parties have sufficiently demonstrated to the Tribunal that their relationship is socially recognised for the purposes of r 1.15A(3)(c).

    Nature of persons' commitment to each other

33. In the context of his or her concerns about the financial aspects of the relationship, the delegate found the evidence about the nature of their mutual commitment to each other to limited and insufficient.  That evidence included a copy of their marriage registration certificate; the relationship statements indicating they were ‘emotionally and mentally’ attracted and vague claims about talking to each other about their future plans, along with screenshots of WhatsApp chats and telephone records to demonstrate their ongoing contact. The delegate also placed unfavourable weight on the parties’ explanations as to the haste of the marriage occurring at the end of the sponsor’s 2018 visit to Pakistan. The Tribunal has subsequently received updated statements from the parties and screenshots of WhatsApp chats, telephone records and facetime calls.

34. The Tribunal notes the parties have now been married for more than five years. The Tribunal places much favourable wight on this aspect as belonging to a mutually supportive marriage.

35. Curiously, the Tribunal received a letter by the applicant’s doctor issued in February 2021 stating that the applicant attended to discuss family planning indicating that she did not wish to become pregnant. In May 2023, however, the Tribunal has medical tests undertaken by the applicant at the Aga Khan University Hospital in Karachi in May 2023 which indicate she was about 7 weeks pregnant. The Tribunal can only assume that the parties have changed their minds about the applicant migrating to Australia to have a child. That is not an unusual turn of events. The Tribunal place significant weight on this development that the nature of the commitment to each other includes the love of a common child and the highs and low in nurturing and educating their own child.

36. Based on this and the other supportive information provided, the Tribunal is satisfied that the applicant and the sponsor provide each other with companionship and emotional support and that they view the relationship as long term for the purposes of r 1.15A(3)(d).

37. There are no other circumstances to consider for the purposes of r 1.15A(2).

38. There is no evidence to suggest that this relationship is not genuine or is contrived and based on all the available evidence, The Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to shared life to the exclusion of others.

39. Therefore, it is satisfied their relationship is genuine and continuing and there is no evidence that they live separately and apart on a permanent basis.

40. On the basis of the above the Tribunal is satisfied that each of the requirements between parts (2)(b), (c) and (d) of section 5F is met at the time the visa application was made and the time of this decision.

    Conclusion

41. The Tribunal is satisfied that the parties married to each other under a marriage that is valid for the purposes of s 5F(2)(a) and the requirements of the Marriage Act.

42. On the basis of the above-mentioned finding, the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.

43. Accordingly, the Tribunal is satisfied the visa applicant meets cl.309.211 and cl.309.221(1).

44. 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

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

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

    ·cl.309.221(1) of Schedule 2 to the Regulations.

    Brendan Darcy
    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).