Mahdi (Migration)

[2023] AATA 4727

Mahdi (Migration) [2023] AATA 4727 (7 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Madani Mahdi

VISA APPLICANT:  Mrs Maryam Dastyar

CASE NUMBER:  2013139

DIBP REFERENCE(S):  BCC2019/2303829

MEMBER:Brygyda Maiden

DATE:7 December 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 07 December 2023 at 8:53pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – marriage registered in Iran – financial aspects – money transfers – nature of the household – social aspects – limited evidence the parties planned and undertook joint social activities – nature of the commitment – length of relationship – limited amount of communications submitted – decision under review affirmed

LEGISLATION
Marriage Act 1961 (Cth), ss 12, 88C, 88D
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700

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 on 16 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, an Iranian national, applied for the visa on 29 April 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 (Cth) (the “Regulations”). The primary criteria must be satisfied by at least one applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 or 309.221 of the Regulations because the delegate after considering all the evidence and information including the matters in reg 1.15A found it was not sufficient to demonstrate that the visa applicant was the review applicant’s spouse as defined under s 5F of the Act.

4. The review applicant lodged an application for review on 24 August 2020 and attached a copy of the notification and the decision from the Department.

5. On 26 April 2023, an officer for the Registrar of the Tribunal wrote to the review applicant requesting that further information be provided by 10 May 2023 and gave examples of the types of information that could be submitted.  On 30 May 2023 the review applicant requested an extension of time.  On 1 June 2023, an extension of time was granted until 29 June 2023.  On 29 June 2023 the review applicant wrote to the Tribunal seeking a further extension of time until the end of August.  On 29 June 2023, the Tribunal agreed and extended the time until 31 August 2023.   On 29 August 2023, the review applicant submitted copies of money transfers, details of the parties’ joint account and two screen shots of messages.

6. The review applicant appeared before the Tribunal on 27 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by videoconference and Mr Madi Shadolee and Mr Meisam Safari by phone.

7. The review applicant’s doctor (Mr Peyman Esfahani) could not attend the hearing to give evidence, so the Tribunal afforded the review applicant until 4 December 2023 to obtain a statement.

8. The Tribunal was assisted by an interpreter in the Persian and English languages.  The parties stated that they understood the interpreter and had no issue using the interpreter.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the visa applicant is the review applicant’s spouse as defined in s 5F of the Act.

11. Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

    This does not mean that evidence subsequent to the visa application does not need to be considered at all. Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

12. Accordingly, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

    Are the parties in a spouse or de facto relationship?

13. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen. A copy of the review applicant’s certificate of Australian citizenship appears on the Department file.

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 visa applicant’s and review applicant’s 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) is effectively a question 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 Department file contains (and the review applicant also submitted) a translated copy of the parties’ marriage certificate which states that the parties marriage was registered on 7 February 2019 in Tehran.  The review applicant said he did not attend the wedding in person however, it does appear that marriage by proxy can exist in Iran and be officially registered.[1] 

    [1] See: Refworld | Iran: Information on whether proxy marriages exist in Iran, and if so, on the procedures, steps and details of a proxy marriage

16. Section 12 of the Act requires that for “the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted.” Part VA of the Marriage Act 1961 (Cth) (the “Marriage Act”) provides for the recognition of foreign marriages. Section 88C(1)(a) indicates that the part applies to every marriage solemnised in a foreign country where the marriage was valid when it was solemnised under local law. In this instance, the parties’ marriage appears to have been registered in Iran.

17. Section 88D(2) of the Marriage Act deals with marriages that will not be recognised as valid in Australia. Provided that none of the exclusions in s 88D(2) of the Marriage Act 1961 (Cth) (“Marriage Act”) apply then the parties’ marriage could be recognised as valid in Australia. Section 88D(2) states that a marriage will not be recognised if:

    a.at the time of the marriage either party was in a marriage to another person that was at the time recognised as valid in Australia.  There is no evidence that is the case here.

    b.if one of the parties was domiciled in Australia, either of the parties was not of marriageable age.[2] In this case, both parties were over the age of 18 at the time of marriage.

    c.the parties are in a prohibited relationship within the meaning of s 23B[3].  There is no evidence that this is the case.

    d.there was not real consent of the parties as set out in s 23B(1)(d)(i)(ii) or (iii).  There is no evidence of this either.

    [2] See s 11 of the Marriage Act 1961 (Cth) which states: “Subject to section 12, a person is of marriageable age if the person has attained the age of 18 years.”

    [3] Section 23B: Grounds on which marriages are void

18. The Tribunal accepts that marriage can occur in Iran by proxy and in this instance the marriage has been registered. 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). However, this evidence alone does not in the Tribunal’s view demonstrate a mutual commitment to a shared life together or a relationship that is genuine and continuing.

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

19. The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.

    Do the parties have any joint ownership of real estate or other major assets? Do the parties have any joint liabilities?

20. There is no evidence before the Tribunal that the parties have any joint ownership of real estate or other major assets or any joint liabilities.

    To what extent is there any pooling of financial resources?

21. The review applicant submitted a document from Bank Sepah issued on 19 June 2023 indicating that the parties have a joint bank account.  It appears that the date of “opening/renewal” of the joint account was on 11 April 2021. No transaction listing or statement was provided so it is unclear how the joint account is being used.  The review applicant told the Tribunal that the only reason that he has this joint account was to prove to the Tribunal that the parties’ relationship is legal and not fake.  The review applicant said the parties don’t use the joint account together, he sends money transfers to the visa applicant’s personal account, but she does withdraw money from the joint account. Although the visa applicant uses the joint account the review applicant does not, due to physical distance (from Australia), lack of bank card and due to the fact that he cannot go to a branch.  Given the review applicant’s evidence that he does not use the joint account, and it was opened to prove that the parties relationship is legal rather than to pool financial resources, the Tribunal gives the account a small amount of weight.

    Does one person in the relationship owe any legal obligations in respect of the other?

22. At the hearing, the review applicant told the Tribunal that neither party had a Will and that he had not set a beneficiary of his superannuation.  However, post hearing, the review applicant submitted a copy of his Will created on 3 December 2023, that purports to pass all of his estate to the visa applicant including his bank accounts, superannuation, motors vehicles and home content.  The Tribunal has concerns about the intention of this document given that it was created post hearing and therefore, the Tribunal affords it a small amount of weight.

    What is the basis of any sharing of day-to-day household expenses?

23. The review applicant told the Tribunal that because the parties are not living together there is no contribution to the household costs.

24. The review applicant submitted evidence of the following money transfers on:

    a.17 January 2017, $1,200; 7 March 2017, $610; 6 September 2017, $1,200; and 21 October 2017, $420 to the visa applicant;

    b.3 January 2018, $320; 21 July 2018, $600 and 13 August 2018, $485 with the reason for transfer being “Gift” to the visa applicant;

    c.8 June 2019, $520 to the visa applicant;

    d.26 August 2019, $437.07 was sent to Haniyeh Dastyar” with the reason being for “Friends and family.” According to the “Application for migration to Australia by a partner” form on the Department file generated on 29 April 2019 (“Application Form”) Haniyeh Dastyar appears to be the visa applicant’s sister.  On 23 October 2019, $1,702.49 was sent to Haniyeh Dastyar with the reason being for “Friends and family”; on 13 December 2019, the review applicant received $370.07 from Haniyeh Dastyar and on 25 December 2019, $40.53 was sent to Haniyeh Dastyar;

    e.23 June 2020, $1005.97; 27 June 2020, $722.98; 28 June 2020, $205.99 and on 6 July 2020, $305.98 was sent to Haniyeh Dastyar with the reason for the transfer being for “Friends and family”;

    f.27 July 2020, $1,005.97 and on 19 September 2020, $505.99 was sent to Haniyeh Dastyar with the reason for the transfer being for “Friends and family”;

    g.7 December 2020, 10 February 2021 and 16 June 2021 $1,000 on each occassion was sent to the visa applicant with the reason for transfer being “Family support”;

    h.16 December 2021, $1,000 was sent to the visa applicant with the reason being “Family support”;

    i.27 December 2021, was sent to Haniyeh Dastyar in the amount of $371.99; and

    j.14 and 23 June 2023, $1000 and on 3 October 2023, $500 was sent to the visa applicant with the reason for transfer being “Family support”.

25. The review applicant told the Tribunal that he sends money to the visa applicant for her to rent a place, buy clothes and other living costs.  The visa applicant gave evidence that she used the money for daily living and gave specific examples of what she used the money for like her trip to Germany and all the expenses involved, and for an operation that she had, and for different things that might come up.  The Tribunal accepts this evidence.

26. The Tribunal queried the significant number of transfers that were sent to Haniyeh Dastyar.  The review applicant stated that she was the visa applicant’s sister.  He sends money to her when she is going to Iran or if she is purchasing something for the visa applicant, he would reimburse her.  There are also other records that he could not keep pertaining to the review applicant asking that his parents give the visa applicant money.  The Tribunal expressed concern that a number of the transactions were not sent to the visa applicant but to another person (her sister) who lives in a different country.  The review applicant said that she owed money to her father, and instead of the visa applicant’s sister sending money to her father, she was returning money to the family. The money was also on-sent to the visa applicant.  It does not reflect all the ways he was supporting her.  The Tribunal found parts of the explanation confusing.

27. The visa applicant said the review applicant transferred money to her when she needed it, not at particular intervals.  The review applicant transferred money to her sister a couple of times, and maybe because he wanted to buy her a gift and her sister was coming to Iran, he transferred money for her to bring to Iran, as sending money to an exchange office reduces the amount and given that she was coming he transferred it to her to bring to the visa applicant.  The transfers indicate that the review applicant has made a number of payments to the visa applicant from January 2017 until October 2023.  There was no evidence of money transfers in 2022 and almost all the transfers in 2020 were to the visa applicant’s sister.  Despite this, the Tribunal accepts that the review applicant has made a number of money transfers to the visa applicant and gives that evidence some weight as it indicates he is sharing his money with the visa applicant.

    Conclusion on the financial aspects of the relationship

28. At both the time of application and time of decision, the parties had no joint ownership of real estate or other major assets and no joint liabilities.  At the time of application there was no evidence of one person in the relationship owing any legal obligations to the other, however, at the time of decision, after the hearing, the review applicant submitted a copy of his Will created on 3 December 2023 naming the visa applicant as his beneficiary (including of his superannuation). The Tribunal gives this some weight.  From the evidence submitted, at the time of application there is no evidence that the parties pooled their resources, but at the time of decision the evidence indicates that the parties have had a joint account since April 2021. However, the review applicant does not use it so the Tribunal affords this a small amount of weight in relation to the pooling of financial resources.  Although the review applicant made clear that because the parties don’t live together, they do not share household expenses, the review applicant has regularly sent money to the visa applicant since 2017 being approximately two years prior to the time of application.  The Tribunal gives this some weight in respect of the review applicant sharing his finances with the visa applicant.

29. At both, the time of application and time of decision, the financial aspects of the relationship do not support the parties being in a genuine and continuing relationship, however, because at both times the parties were not living together and lived in separate countries, the Tribunal accepts that the financial aspects would have been difficult for the parties to make out.  For this reason, the Tribunal affords this consideration neutral weight.

    Nature of the household

30. The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.

    Is there any joint responsibility for the care and support of children?

31. There is no evidence before the Tribunal that the parties have any joint responsibility for the care and support of any children or that they have any children of their own.

    What are the living arrangements of the persons?

32. The parties gave consistent evidence as to each other’s living arrangements at the time of application.  The Tribunal affords this some weight.

33. The review applicant gave evidence that he continues to reside in the same property alone, and the visa applicant is currently living with her sister, in Berlin, Germany (consistently, the review applicant submitted a copy of a page showing an entry stamp in the visa applicant’s passport on 6 November 2023 indicating that she had travelled to Berlin).  Neither party was able to tell the Tribunal the street address of where the visa applicant lived in Germany, with the visa applicant stating that the German pronunciation was a bit difficult, and she had only moved in on 6 November 2023.  The Tribunal accepts this evidence.  Both parties gave consistent evidence that the visa applicant was looking to find a place in Dortmund (where she had been accepted to do her PhD).  A letter submitted by the review applicant from Technische Universitat Dortmund dated 17 April 2023, from Professor Dr h.c. Thomas Schroder provides consistent evidence as to the visa applicant being accepted as a PhD candidate.

    Is there any sharing of the responsibility of housework?

1. As the parties have never lived together, there is no evidence before the Tribunal that the parties have ever shared the responsibility of housework.

   Conclusion on the nature of the household

2. In respect of the nature of the parties’ household, at the time of application and time of decision the parties have no joint responsibility for the care and support of children and no children of their own. The parties’ evidence suggests that they were familiar with each other’s living arrangements at the time of application and time of decision (except for the visa applicant’s Berlin address. However, the Tribunal does not give this adverse weight as at the time of the hearing, the visa applicant had been living with her sister for under a month and was looking to find a place in Dortmund and had issues with German pronunciation, all of which the Tribunal accepts).  As the parties have never lived together, they have not shared the responsibility housework. 

3. The Tribunal finds at the time of application and time of decision that the nature of the household provides little support for the parties being in a genuine and continuing relationship.  However, the Tribunal accepts that it would be difficult for the parties to establish a household when they reside in separate countries.  For this reason, the Tribunal gives this consideration neutral weight.

   Social aspects of the relationship

4. The Tribunal has considered evidence of the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.

   Do the persons represent themselves to other people as being married to each other? What is the opinion of the persons’ friends and acquaintances about the nature of the relationship?

5. Copies of the wedding photographs were submitted which indicate that the review applicant attended the wedding remotely as there is a picture of him attending via mobile phone.  There review applicant told the Tribunal that all of his three sisters and their families attended (though his brother in Canada did not) and the visa applicant’s parents, two sisters, four brother, and sisters and brother-in-law also attended.  The visa applicant told the Tribunal that she had met all of the review applicant’s siblings except for his brother who resides in Canada whom she has met via video call. The Tribunal gives this a small amount of weight.

6. The review applicant told the Tribunal that the parties friends and family knew they were married and know their story.  The visa applicant told the Tribunal that in Iran, their friends know they are married because the parties have been to lots of different parties together, and their families are aware that of the parties marriage. The reception or wedding ceremony is not formalising the marriage, instead, it is announcing to everyone that it has taken place.  Excluding the parties, there was no evidence submitted from anyone who attended the parties’ wedding or who had attended parties with the parties.

7. The review applicant’s Will also indicates that the visa applicant is his wife.

8. Prior to the witnesses giving their oral evidence, the Tribunal expressed its concern that no evidence had been submitted to the Tribunal as to the social aspects of the parties’ relationship.  The review applicant’s response was that is the best he could provide and there was not much the parties could do about it.

9. Mr Madi Shadolee told the Tribunal that the review applicant was his friend, and he met the parties when he was in Iran.  The parties are engaged and married, although he does not know the date of the marriage.  He knows that the parties are married because when he is in contact with the review applicant he gets updates from him.  The parties were friends for a long time, so he had witnessed them as a couple twice; once at the cinema (he saw that they were wrapping their arms around each other) and another time at a picnic event. The parties have a close friendship, it is not a typical friendship, it is like a partnership.  Given that the review applicant left Iran in 2014, the evidence of the parties socialising together is at least nine years old, approximately five years prior to the time of application and prior to the parties marrying.  Although the Tribunal accepts this evidence does suggest the parties represent themselves as being married, it provides a small amount of insight in relation to the parties’ relationship well before the time of application.

10. Mr Meisam Safari told the Tribunal that he met the parties in around 2013 prior to coming to Australia.  They had a good relationship he knew they were in love, and they were always in contact.  He met the parties in mid-2013 in person and they went to the cinema and a picnic, and after that, it has just been by video call because of the distance.  Mr Safari knows the parties relationship is genuine because he has known the review applicant for more than ten years and saw the parties’ relationship when they were together.  The parties talk all the time, and he has seen them talking when either the review applicant is at his house, or he is at the review applicant’s house. He can see by the nature of their relationship that they are in love.  He knows that the parties were married in 2019.  The Tribunal gives Mr Safari’s evidence some weight in relation to the parties representing that they are married to each other, and some weight as to the nature of the parties relationship and their continued communication.

11. Post hearing, the review applicant submitted a letter from his doctor Dr Peyman Esfahani dated 2 December 2023 attaching a letter dated 11 December 2020.  The 2 December 2023 letter confirms that the review applicant has been a patient since 10 February 2017.  The review applicant had a motor vehicle accident on 12 May 2018 which resulted in a right scaphoid fracture and required him to remain in Australia for at least 12 months for care by a consultant orthopaedic surgeon and then a physiotherapist. Consistent with this, the review applicant submitted an undated note from Dr Leila Farhadi Orthopaedic Surgeon, stating that the review applicant had a history of arthroscopic bankan (the writing is not clear) repair for his left shoulder and calcification around his biceps and subscapular. The review applicant is being treated by physiotherapist. It appears to be a referral, but it is not clear what is for or when.

12. Dr Esfahani confirms that the parties met in 2013 and they were married in 2019 and that the review applicant had spoken to him about these matters over several consultations over the years.  “In view of his mental health issue and later wrist fracture he did not try to go to Iran to join his wife.”   Dr Peyman also attached his letter dated 11 December 2020 which states that the review applicant had “been suffering from mixed anxiety and depression.”  The letter indicates that the review applicant’s mental health condition has been getting worse due to the visa applicant being in Iran and he has had to “change his medication based on his high level of anxiety and depression caused with this matter…”.  It also states that the parties were married in Iran in 2019, and the visa applicant is still in Iran.  The Tribunal affords this some weight as to the parties representing themselves as being married but little weight as to the nature of their relationship.

    Is there any basis on which the persons plan and undertake joint social activities?

13. The review applicant told the Tribunal that the last time he saw the visa applicant in person was in 2014.  The Tribunal asked why it had been so long since he saw his wife (the visa applicant) in person.  The review applicant stated that he did not go to Iran for several reasons:

    a.the Iranian government may have spies because he does IT and electronics work and they want him to help with information collecting;

    b.he does IT and has access to sensitive information as he works for the Australian Taxation Office, and the Australian Taxation Offices does not like their employees going to countries that are potential enemies.  To that end he submitted an e-mail from the Australian Taxation Office dated 22 November 2023 which states “as Commonwealth employees working for the ATO, we are very attractive to foreign intelligence service operatives”;

    c.he left Iran because of the regime and does not want to work with them.

    d.he has been involved in protesting against the government since he was young;

    e.a couple of years ago Iran shot down a passenger plane and killed everyone on it;[4]

    f.he was trying to survive in Australia, let alone the price of the tickets.  The review applicant submitted a number of documents in relation to his employment history indicating that he had difficulty with his employment situation in the past (discussed below);

    g.the review applicant could see no reason to go to Iran (is not willing to take the risk to go back to Iran) even to go and see his parents (he saw them in Canada in 2021 – which is where his brother lives);

    h.due to the COVID-19 travel restrictions; and

    i.he has been focussing on making a living.

    [4] This seems consistent with the following news article: >

    In relation to his employment, the review applicant submitted a document dated:
    
    

    a.18 March 2009 from Engineers Australia in relation to the review applicant’s assessment of his engineering qualifications, with the outcome being that the review applicant was assessed “as meeting the current academic requirement for standing as a Professional Engineer in Australia”;

    b.19 October 2015 stating that Mr Madani’s employment at Premier Technologies would not be continued effective from 19 October 2015;

    c.23 May 2016 stating that Mr Madani’s employment would not continue through the end of his probationary period, with his employment at Web24 ending on 27 May 2016;

    d.9 October 2017, which appears to be a Defence Force recruitment form signed by the review applicant with his preferred area of interest being “Pilot Army”;

    e.11 October 2017, a letter to the review applicant from the Defence Force Recruitment assessing him as being medically unsuitable for military service;

    f.6 May 2018, which appears to be a printout related to an accident which occurred on 6 May 2018; and

    g.9 November 2023 to 22 November 2023 which appears to be a pay slip from the Australian Taxation Office for that period, which appears consistent with the review applicant’s evidence that he is working for the Australian Taxation Office.

14. Although the Tribunal accepts the reasons the review applicant had for not wanting to return to Iran, there were other countries that the parties could have met in.  The Tribunal asked the review applicant what stopped the parties meeting in another country.  The review applicant stated that he was telling the visa applicant that he wanted to marry and be with her and make it happen as fast as possible.  Another factor causing this delay was COVID-19 travel restrictions (which the Tribunal accepts).  The visa applicant comes from a traditional family.  After that there were issues and problems including the time taken for the review at the Tribunal.  The review applicant has anxiety, is talking to a therapist and has been living in survival mode for all these years.  The review applicant also indicated that parties had been waiting for over five years, and it seemed like the end of the road.  He applied to study, and the visa applicant did the same but in Germany.  He needs to refresh in order to get an admission to do a PhD in Germany. 

15. The Tribunal accepts that there would have been certain periods when the review applicant travelling to see the visa applicant would have been difficult, including:

    a.when the COVID-19 travel restrictions were in place;

    b.during certain periods of time when the review applicant’s employment was uncertain; and

    c.when the review applicant had his accident in May 2018 (which although he did not specifically mention this as a reason for not seeing the visa applicant, he did submit documentation in relation to a TAC claim, it was mentioned in Dr Peyman Esfahani’s letter dated 2 December 2023, as well as the lengthy recovery period).

16. The Tribunal does not accept that the review applicant’s:

    a.anxiety was a reason preventing him from travelling altogether during the almost ten years that the parties have been apart. Dr Peyman Esfahani’s letter dated 2 December 2023 indicates that the visa applicant’s mental health and later his wrist fracture were reasons “he did not try to go to Iran to join his wife.”  Although that may be the case for some of the period, the Tribunal notes that the visa applicant gave evidence that he travelled to Canada to see his parents which does not seem consistent with this evidence; and

    b.his application to study would prevent him from travelling.  No evidence of any study application by the review applicant has been submitted, and even if he was studying, educational institutions generally have holiday periods where travel would have been possible, which seems to suggest that study would not have prevented him from travelling for the almost ten-year period during which the parties’ were apart.

    For the reasons mentioned above, the Tribunal does not accept that for the entire almost ten- year period that the parties could not have travelled to see each other (if not in Iran, then in another country), particularly given the review applicant travelled to Canada to see his parents in 2021 as discussed below.

17. The Tribunal mentioned that it had been almost ten years (since the parties had seen each other), and the review applicant flew to Canada to see his parents.  The review applicant said that his brother could apply for his parents to see his brother (in Canada).  The visa applicant is a tourist, the same thing is happening for Europe, Canada, Turkey, or the UAE that Iran has influence.  He told the Tribunal that there was a risk of detainment and being sent back to Iran.  Even if this were the case (and no evidence of this was submitted), both parties gave evidence that the visa applicant is currently in Berlin, which appears to indicate that the parties could have met each other in another country.  The Tribunal finds that the parties’ very lengthy separation that has included the entire duration of their marriage and for the reasons already discussed is indicative of the parties not being in a genuine and continuing relationship and not having a mutual commitment to a shared life together.

18. Two photographs were submitted of the parties together, one of them standing and another in what appears to be in a coffee shop together. They are not dated or labelled.  The Tribunal gives them little weight. The visa applicant told the Tribunal that the Tribunal could observe the trajectory of their aging through photographs of the years that they have been in contact together.  The Tribunal indicated to the review applicant that a very limited number of photographs had been submitted and gave the review applicant an additional week to submit additional photographs, and if he chose to do so, to include narrations and approximate dates. In post hearing, on 4 December 2023, the review applicant wrote to the Tribunal and indicated that other than the occasions that he had sent photographs, during the period of 2013-2014, he did not find any events during which the parties had taken other photographs.  The review applicant also stated the parties “have some other photos however I consider them too private to share with anyone else.  (I appreciate the AAT’s understanding about this matter).”  The Tribunal finds that there is no evidence of the parties planning or undertaking social activities after 2014 and the photographic evidence that has been submitted of the parties together has been minimal and provides limited support for the parties planning and undertaking joint social activities. The Tribunal finds that this lack of evidence tends to indicate that the parties are not in a genuine and continuing relationship and have not planned and undertaken social events as claimed.

    Conclusion on the social aspects of the relationship

19. In respect of the social aspects of the relationship, at the time of application and time of decision, there is a small amount of evidence that the parties represent themselves as being married and a small amount of opinion evidence from the persons’ friends and acquaintances about the nature of the parties’ relationship (particularly when compared to the relationship duration).  There is no evidence since 2014 of the parties planning and undertaking joint social activities together or seeing each other in person at all during that time period. Additionally, even prior to 2014 there is limited evidence the parties planned and undertook joint social activities.  On balance, the Tribunal is not satisfied at either the time of application or time of decision that the social aspects of the relationship are consistent with the parties being in a genuine and continuing relationship.

    Nature of persons’ commitment to each other

20. The Tribunal has considered evidence of the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support that the persons draw from each other and whether the persons see the relationship as a long-term one.

    What is the duration of the relationship?

21. According to the Application Form, the parties were colleagues from 2007 until 2011.  The parties relationship became serious in 2013, the review applicant proposed in late 2017 and the parties married on 9 February 2019, though the parties’ marriage certificate states that their marriage was registered on 7 February 2019.  Both parties gave consistent evidence that their relationship started in mid-2013 with the visa applicant stating that the parties became serious from mid-2013 until late 2014, when they were meeting, spending time together and going to parties and on trips. 

22. At the time of application, the parties had been in a relationship for six years and married for over two months, which the Tribunal affords some weight.  At the time of decision the parties have been in a relationship for ten years and married for over four years.  The Tribunal gives this weight.

    What is the length of time the parties have lived together?

23. The review applicant told the Tribunal that the parties have never lived together.

    What is the degree of companionship and emotional support that the persons draw from each other?

24. The review applicant submitted four screenshots of chat messages that were not in English to the visa applicant, showing Facebook messages dated 28 October 2011, 29 October 2011, 2 April 2012, 11 August 2013, 12 August 2013 and 7 February 2015, 10 October 2015.  Two additional screen shots of Facebook messages were submitted, which were not in English.  On one the date is not clear, and the other shows messages on 18 August 2023 and on 20 August 2023. 

25. The review applicant told the Tribunal that the parties communicate every day, by way of a range of applications including WhatsApp and IMO, Microsoft Skype, telephone and e-mail.  (the Tribunal also notes that Mr Meisam Safari has also given evidence that he sees the parties speak regularly).  The Tribunal mentioned to the review applicant that it had no communication records between 2015 and 2023 and then only a very small amount.  The review applicant indicated to the Tribunal that he wished to submit additional records.  The Tribunal allowed the review applicant an additional week after the hearing to submit additional documents.  Post hearing, on 4 December 2023, the review applicant wrote to the Tribunal and stated that he did not have call logs from 2013, he had an old phone that could not be restored. He also attempted to get the service provider in Iran to provide call records but advised that old logs were deleted from their system.  No evidence of this was submitted.  No further call records were submitted from the period between 2015 and 2023 from any communication application that the parties claim to have used which the Tribunal finds concerning.  Although it is clear that the parties communicate, and the Tribunal accepts that it may be difficult to now obtain records that are approximately ten years old, the small amount of records submitted (including those in recent times) gives the Tribunal little insight of the degree of companionship and emotional support that the parties draw from each other.  The Tribunal affords the limited records submitted little weight.

1. The review applicant told the Tribunal that the visa applicant provided him with emotional support during his first experience in Australia when he could not find a job.  His expectations were totally different to reality and at that time he went to New South Wales and lived in Sydney in shared accommodation for a few months.  He was depressed, not in a good mood and could not integrate into society as he was lacking skills. His brother, who resides in Canada, told him to “solider on”.  He went back to Iran and studied IT for two years.  He was not too sure if he could succeed.  He would see himself incapable of doing things that others could do.  He applied for cleaning jobs and he was told that he was not good enough.  The visa applicant being in his life gave him hope, kept him alive and allowed him to “solider on”.  He would see her everywhere he went, and he was trying to hold on to something.  She was his anchor for everything and if it was a dream, she helped him to survive.   The Tribunal gives this some weight.

2. The visa applicant said she had supported the review applicant when she made the decision to go to Germany to do a Ph.D.  The parties had completely lost hope in their case in Australia, she was trying to get approval from a university, and then the review applicant could join her in Germany though it would not be easy because he has an established life in Australia. The Tribunal gives this some weight.

3. The review applicant said he supported the visa applicant when she would get mad and tell him that he had left her alone and lied to her.  He would tell her about when he went to get furniture, he would have her contribute to the colour and what she would like to add to give her a sense of purpose.  She also wanted to have children, but it is too late for that.  It was a tedious and daunting requirement to get an admission to Germany for her to go there and set up a life.  He gave her direction about going to Germany and her whole life.  He told her to do a hairdresser course because she likes that, because he was concerned that for her to find a job as a manager that she would lack local experience.  He is a technical person and had difficulty finding a job and was looking at finding way a that she could integrate into society and contribute to the household.  So he paid for an advanced hairdresser course (no evidence of this was submitted). This was the direction that the review applicant was giving the visa applicant as she prefers to follow.  He also provided her with financial support.  The Tribunal gives this some weight.

4. The visa applicant told the Tribunal that the review applicant emotionally supported her by encouraging her when she made a decision to go to Germany.  She was not sure that she could go and succeed, even though she had graduated from a very good university.  The review applicant was very encouraging, motivated her and told her that she had a good history from a good university, and he was sure that she would succeed. The Tribunal gives this some weight.

5. The review applicant gave evidence that the visa applicant’s hobbies and interests were to spend time with her family (which was consistent with the visa applicant’s evidence).  She likes to watch movies, go on picnics, go and see gardens and sight see.  The visa applicant said that she liked to go for walks, mountain climbing and spending time with family and friends.  The parties gave consistent evidence that the review applicant’s hobbies and interests were to make models (for helicopters and aeroplanes) and riding motorcycles.  The parties gave consistent evidence that they like to watch horror movies together. The Tribunal gives this some weight.

   Do the persons see the relationship as a long-term one?

6. The review applicant told the Tribunal that the parties long term plans were to buy a place and have a child or two (though the Tribunal notes that earlier on in the hearing the review applicant had told him that it was too late for her to have children).  The review applicant indicated that he was going to buy a place in Victoria, and he would send links to the visa applicant, and he would inspect the property and revert back to her.  He was told that he would not get enough credit from the bank and could not do it on his own, he needs her by his side. The visa applicant told the Tribunal that the parties future plans together were to go forward and create an independent and peaceful life far from any issues and they do not have a very big goal other than to have a peaceful life together.  The parties plans do not appear to be particularly detailed or consistent.  For this reason the Tribunal gives this a small amount of weight.

7. The review applicant told the Tribunal if the visa applicant could not come to Australia, that he would move to Germany to be with her. The Tribunal gives this weight.

   Conclusion as to the nature of the persons’ commitment to each other

8. At the time of application, the parties had been in a relationship for six years and married for over two months, which the Tribunal affords some weight to. At the time of decision the parties have been in a relationship for ten years and married for over four years, which the Tribunal affords weight to.  The parties have never lived together and have not seen each other since 2014.  Although the review applicant claims to speak to the visa applicant daily there have been a limited amount of communications submitted despite the Tribunal affording the review applicant additional time to submit additional records.  That being said the Tribunal notes that there is witness evidence that the parties’ speak regularly which seems inconsistent with the very small amount of records available despite the multiple communication platforms the parties claim to use.  There is some evidence of the emotional support that the parties draw from each other, evidence that the parties know each other’s hobbies and interests and a small amount of evidence that the parties see the relationship as a long-term one, though the parties plans do not appear to be particularly detailed or consistent.  However, the Tribunal gives weight to the review applicant’s evidence that he would move to Germany to be with her if the visa applicant could not come to Australia.

9. On balance, at the time of application and time of decision, although there is evidence about the nature of the persons’ commitment to each other, it does not provide strong support for the parties being in a genuine and continuing relationship, particularly given the duration of the parties’ claimed relationship.

   CONCLUSION

10. The Tribunal accepts that the parties are married to each other under a marriage this is valid for the purposes of the Act as required by s 5F(2)(a).

11. Given the relatively small amount of evidence in support of the parties’ claimed relationship, particularly when considering its length, and for the reasons discussed in the reg 1.15A(3) matters, the Tribunal is not satisfied that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others as required by s 5F(2)(b) or that their relationship is genuine and continuing as required under s 5F(2)(c). Although the Tribunal accepts that there is some evidence to support the parties being in a genuine and continuing relationship (considering their lengthy relationship duration and money transfers amongst other things) the evidence indicating that the parties are not in a genuine and continuing relationship is stronger. In particular that:

    a.the parties have not seen each other since 2014 (either in Iran or elsewhere). Although the Tribunal accepts that there are some periods of time where travel may not have been possible (discussed above) and notes the review applicant’s reluctance to return to Iran, the Tribunal does not accept that the parties circumstances were such that they could not have seen each other for almost ten years.  This is particularly given that in 2021 the review applicant travelled to Canada to see his parents, which shows his preparedness and ability to travel overseas;

    b.the parties have not socialised since 2014, and even before then there is very little evidence of the parties having planned and undertaken social activities;

    c.there is a very small amount of communication records despite the review applicant claiming to speak to the visa applicant daily and witness evidence that they speak regularly;

    d.there is very limited photographic evidence of the parties together; and

    e.there is a relatively small amount of evidence that the parties’ represent themselves as being married and as to the nature of the parties relationship. The witnesses who gave evidence had not seen the parties together since 2014, though the Tribunal does accept that one witness did indicate that he saw the parties talking on the phone all the time.

12. For the reasons discussed above, the visa applicant does not meet cl 309.211 or 309.221. Therefore, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

13. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Brygyda Maiden
    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).

    
    

“(1)  A marriage to which this Division applies that takes place after the commencement of section 13 of the Marriage Amendment Act 1985 is void where:

(a)  either of the parties is, at the time of the marriage, lawfully married to some other person;
                (b)  the parties are within a prohibited relationship;
                (c)  by reason of section 48 the marriage is not a valid marriage;
                (d)  the consent of either of the parties is not a real consent because:

(i)  it was obtained by duress or fraud;
  (ii)  that party is mistaken as to the identity of the other party or as to the nature of the ceremony performed; or

(iii)  that party did not understand the nature and effect of the marriage ceremony; or

(e)  either of the parties is not of marriageable age;

and not otherwise.

(2)  Marriages of parties within a prohibited relationship are marriages:

(a)  between a person and an ancestor or descendant of the person; or
                (b)  between 2 siblings (whether of the whole blood or the half-blood).

(3)  Any relationship specified in subsection (2) includes a relationship traced through, or to, a person who is or was an adopted child, and, for that purpose, the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, of the child shall be deemed to be or to have been the natural relationship of child and parent.
(4)  Nothing in subsection (3) makes it lawful for a person to marry a person whom the first-mentioned person could not lawfully have married if that subsection had not been enacted.
(5)  For the purposes of this section:

(a)  a person who has at any time been adopted by another person shall be deemed to remain the adopted child of that other person notwithstanding that any order by which the adoption was effected has been annulled, cancelled or discharged or that the adoption has for any other reason ceased to be effective; and
                (b)  a person who has been adopted on more than one occasion shall be deemed to be the adopted child of each person by whom the first-mentioned person has been adopted.

(6)  For the purposes of this section:

"adopted" , in relation to a child, means adopted under the law of any place (whether in or out of Australia) relating to the adoption of children.
"ancestor" , in relation to a person, means any person from whom the first-mentioned person is descended including a parent of the first-mentioned person.”