Komi (Migration)

[2023] AATA 3344

Komi (Migration) [2023] AATA 3344 (22 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nahid Yagoub Komi

VISA APPLICANT:  Mr Martin John William Tell

REPRESENTATIVE:  Ms Linda V N George (MARN: 0101700)

CASE NUMBER:  2105307

DIBP REFERENCE(S):  OSF2018/006439 OSF2018006439

MEMBER:Kira Raif

DATE:22 August 2023

PLACE OF DECISION:  Sydney

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

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 22 August 2023 at 11:20am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – couple view their relationship as a long-term one – Tribunal is satisfied their relationship is a genuine and continuing relationship – parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act–– decision under review remitted     

LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221

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 17 April 2021 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 is a national of Sudan, born in January 1976. He applied for the visa on 26 March 2019 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.221 because the delegate was not satisfied he applicant was the spouse of the sponsor. The sponsor (‘the review applicant’) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 22 August 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and the review applicant’s mother. Other witnesses were available to give oral evidence to the Tribunal but the Tribunal determined it was not necessary to hear from them.

4. The review applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

5. At the time the application was made, 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).

6. 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.

7. ‘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). 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?

8. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The visa applicant provided with the application evidence of the couple registering their marriage in January 2018. (The review applicant told the Tribunal the marriage took place in January 2016 but due to the advice of a migration agent, they obtained new registration papers in 2018.) There is nothing to suggest the marriage is not valid. The Tribunal is satisfied on the evidence before it 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?

9. Limited evidence was provided to the delegate and there is considerably more evidence before the Tribunal. The Tribunal has also had the benefit of the parties’ oral evidence and fund them to be credible and truthful witnesses.

10. With respect to the financial aspects of the relationship, there is evidence before the Tribunal that the review applicant has been providing regular financial support to the visa applicant. The visa applicant provided with his application evidence of multiple financial transfers from 2018 and evidence of more recent transfers is before the Tribunal.

11. The review applicant told the Tribunal that the visa applicant has been unable to work due to the war and she has regularly provided him with financial support. The Tribunal accepts that evidence. The Tribunal also acknowledges that the review applicant has nominated the visa applicant as a beneficiary on her superannuation policy.

12. There is limited evidence of joint assets or liabilities and of legal obligations owed to each other but the Tribunal acknowledges that these arrangements may not be readily available (or necessary) for parties residing in different countries.

13. The Tribunal has considered the nature of the household. The evidence before the Tribunal is that the review applicant has made four trips overseas to be with the visa applicant, spending about two months together at a time. She travelled with her mother on each occasion. Both the visa applicant and the review applicant told the Tribunal that they lived together, first at the visa applicant’s home and during subsequent visits in rented accommodation. They described their activities during these periods of cohabitation. The Tribunal is satisfied that during these periods the applicant and sponsor had established a joint household and shared housework. The review applicant also provided to the Tribunal evidence of having sought medical advice about conceiving a child and the Tribunal accepts that they genuinely intend to have a child to adopt joint responsibility for the care and support of children.

14. The Tribunal accepts that the relationship is socially recognised and there is evidence from third parties who attest to their belief that the relationship is a genuine one. The Tribunal accepts that during the periods of cohabitation, the applicant and sponsor visited family members and friends, attended church together and the visa applicant introduced the sponsor to his friends and colleagues as his wife. The Tribunal accepts that they planned and undertook joint social activities. The Tribunal accepts that the relationship is recognised by others.

15. The couple have been married for over seven years (noting the review applicant’s evidence that the marriage took place in 2016 and not in 2018). There is extensive evidence of their communication with each other during the periods of separation. The Tribunal accepts that they provide each other with comfort and support. They outlined their plans for the future and the Tribunal accepts they view the relationship as a long term one.

16. Having considered all the circumstances of the relationship, the Tribunal is satisfied that the applicant and sponsor have a mutual commitment to shared life to the exclusion of others. the Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they do not live separately and apart on a permanent basis. 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. Therefore the visa applicant meets cl.309.211 and cl.309.221.

    Conclusion

17. 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

18. 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

    ·cl.309.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member