Khan (Migration)

[2024] AATA 766

Khan (Migration) [2024] AATA 766 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Ramiz Abdullah Khan

REPRESENTATIVE:  Mr Ejaz Khan (MARN: 0213478)

CASE NUMBER:  1916621

HOME AFFAIRS REFERENCE(S):          BCC2017/3315658

MEMBER:Stephen Witts

DATE:2 April 2024

PLACE OF DECISION:  Melbourne

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

·cl 820.221 of Schedule 2 to the Regulations

·cl 820.211 of Schedule 2 to the Regulations

Statement made on 02 April 2024 at 11:31am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – pooling of financial resources – joint household at several locations – applicant’s involvement with the sponsor’s wider family – lengthy relationship – decision under review remitted    

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; 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 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 12 September 2017 on the basis of his relationship with his sponsor. 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). 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 820.221 because the delegate was not satisfied that the applicant was in a genuine spousal relationship.

4. The applicant appeared before the Tribunal on 2 April 2024 to give evidence and present arguments.

5. The Tribunal also received oral evidence from the sponsor, Ms Mary Fayad.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is in a genuine spousal relationship with the sponsor.

   Whether the parties are in a spouse or de facto relationship

9. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, Ms Mary Fayad, who is an Australian citizen.

10. ‘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.

11. The Tribunal has considered all the material before it including evidence provided prior to the hearing and evidence given at the hearing.

12. The Tribunal notes it has been provided with a copy of the relevant delegate’s decision dated 6 June 2019 by the applicant.

13. In this decision it was stated that the applicant lodged a valid application for a partner visa on 12 September 2017 on the basis of being in a partner relationship with an Australian citizen sponsor, Mary Fayad (the sponsor) who lodged a sponsorship in support of the application.

14. According to the delegate it accepted that the applicant and the sponsor may have been in a married relationship but that they did not meet the definition of de facto partner under s 5CB, and that the requirements of s 5F were not met when considering the requirements of regulation 1.15A in determining whether there were financial aspects to the relationship, the nature of the household, the social aspects of the relationship, and the nature of the persons’ commitment to each other.

15. Regarding the financial aspects of the relationship the delegate asserted that the applicant and the sponsor have not provided evidence of financial aspects of the relationship.

16. Regarding the nature of the household, the delegate asserted that no documentary evidence was provided in regard to whether the applicant and the sponsor were living together as a couple and have a shared household.

17. Regarding social aspects of the relationship the delegate contended that there was no evidence before it that the applicant and the sponsor present themselves as a married couple to friends, family and the wider community.

18. Regarding the nature of their commitment to each other the delegate asserted that the applicant and sponsor stated that they were married on 17 March 2017 but that a marriage certificate itself was not provided and nor was any other evidence regarding these criteria.

19. The Tribunal has also considered material provided by the applicants.

20. The Tribunal notes the material was provided on 20 September 2022 which included various photos of the applicant and the sponsor, bank statements in both names in 2021, a Centrelink application for the applicant and sponsor, a joint tenancy ledger and agreement, driver’s licence material, a phone bill in the sponsor’s name and other correspondence to the sponsor, and other material from that time.

21. The Tribunal also notes that just prior to the hearing other evidence was provided including a residential tenancy agreement in both the names of the applicants for rental accommodation from 27 August 2023 until 27 August 2024. Also included was a joint bank account statement from 1 July 2023 until 31 December 2023. Also included were 2 Form 888 supporting documents from Mr Charbel Bilan, a cousin of the sponsor, and Ms Remane Bilan, his wife, and other material.

22. At the hearing the Tribunal had a detailed discussion with the applicant and the sponsor regarding the application.

23. The applicant stated that he first came to Australia on 2 July 2014 on a student visa studying business information services. He stated that he did not graduate and took various jobs for periods of time while studying including working as a cleaner, working as a dispatch driver, and working in a petrol station where he met the sponsor in November 2016. He stated that soon after he moved in with the sponsor and the sponsor’s son, then 14, and provided evidence that he has lived with the sponsor continuously since November 2016 in 5 rented houses. He provided evidence that in their first house together, where the sponsor was previously living in Bligh Park, they lived with her son and that they then moved out to Cambridge Gardens living for a period with the sponsor’s brother, and that since that time they have lived in three other rented houses together without others.

24. The applicant and the sponsor stated that they were married on 17 March 2017 and provided a marriage certificate from NSW and an Islamic certificate for that event.

25. The sponsor stated that she has 4 children, including 3 to her first husband that she married at the age of 16 and that they are now all in their 30s, and that she has a son now 21 from a relationship between her first husband and her second husband, the applicant.

    Are the parties validly married?

26. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence, the parties were married to each other on 17 March 2017 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?

27. The Tribunal now turns to an assessment as to whether the applicants meet the requirement of reg 1.15A(3) (a), (b), (c), and (d).

    Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

28. The Tribunal notes that there is no joint ownership of real estate or other major assets and no joint liabilities or legal obligations owed between the parties.

29. However, it is also the case that there is a significant amount of the pooling of financial resources including a joint bank account of some seven years standing, where transactions in evidence have been provided and that the parties both draw from that account noting in particular that the applicant’s salary is paid into the joint account, and that the sponsor does not work but also receives a disability pension from an injury sustained in 2007. It is noted that the sponsor also has her own Westpac account.

30. The Tribunal had a detailed discussion with the applicant and sponsor about this joint account and how it is used regularly for all their transactions including shopping and household expenses. The Tribunal notes that evidence was provided that the applicant pays the rental on their house which is currently $550 per week, and that he also pays the utility bills through that account, and that the sponsor pays her $750 fortnightly disability pension into that account and that she does most of the household shopping.

31. The Tribunal finds that there are financial aspects to their relationship which would suggest that they are in a genuine spousal relationship.

    Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

32. The Tribunal notes that evidence was provided that the applicant and the sponsor have shared a house together for seven years noting that her son lived with her and the applicant in the first house and that they both lived with her brother in the second house, but that they have lived just the two of them together in the last three houses. The Tribunal notes evidence was also provided that as well as these joint living arrangements there is the sharing of housework but that they do not have any children together.

33. The Tribunal finds that there are circumstances of a joint household which also suggests that the applicant and the sponsor in a genuine spousal relationship.

    Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

34. The Tribunal noted evidence was provided regarding the social aspects of their relationship in particular the Tribunal notes that the sponsor has four children from previous relationships and seven grandchildren and that the applicant has met and has socialised with all of her children and grandchildren over the years and takes an active part in the lives of her grandchildren. The Tribunal also notes evidence provided from other parties including her cousins and other relatives and friends that they represent themselves to others as being in a genuine spousal relationship.

35. The Tribunal finds that this evidence would also suggest that the applicant and the sponsor are in a genuine spousal relationship.

    Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

36. The Tribunal notes that the applicant and the sponsor were married in 2017 and have remained married for the last seven years and that they have a commitment to each other and that it is represented by the evidence provided. The Tribunal finds that this indicates that the applicant and the sponsor are in a genuine spousal relationship.

    Any other circumstances of the relationship.

37. The Tribunal notes that all relevant circumstances pertaining to the relationship have been considered.

38. The Tribunal therefore finds that the applicants have met the necessary assessments against s 5F(2)(a)-(d) and that they do have a mutual commitment to a shared life to the exclusion of others, that they do have a genuine and continuing relationship, and they do live together, and not separately and apart on a permanent basis.

39. On the basis of 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.

40. Therefore the applicant meets cl 820.211 and cl 820.221.

41. 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 820 visa.

    DECISION

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

    ·cl 820.221 of Schedule 2 to the Regulations

    ·cl 820.211 of Schedule 2 to the Regulations

    Stephen Witts
    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).