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

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”).
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Mahdi (Migration) [2023] AATA 4727
Case: [2023] AATA 4727
Decision Date: 7 December 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Partner (Provisional) (Class UF) visa, subclass 309. The applicant sought to establish that they were the spouse of an Australian citizen, the review applicant. The core dispute revolved around whether the parties were in a genuine and continuing married relationship as defined by the Migration Act 1958 (Cth).

The Tribunal was required to determine if the visa applicant met the criteria for the visa, specifically whether they were the spouse of the review applicant at the time of the application and at the time of the Tribunal's decision. This involved assessing whether the parties were in a married relationship, characterised by a mutual commitment to a shared life to the exclusion of others, and whether they lived together or not separately and apart on a permanent basis, as stipulated by section 5F of the Act. The Tribunal also had to consider evidence of events subsequent to the visa application if it logically tended to show the existence or non-existence of relevant facts.

In reaching its decision, the Tribunal applied the definition of "spouse" under section 5F of the Act, which requires consideration of all circumstances of the relationship, including financial aspects, the nature of the household, social aspects, and the nature of the commitment to each other, as further detailed in regulation 1.15A(3) of the Migration Regulations 1994. The Tribunal found that while the marriage was registered in Iran, there was limited evidence presented regarding the financial aspects, the nature of the household, and particularly the social aspects, such as planned and undertaken joint social activities. Furthermore, the limited amount of communications submitted suggested a lack of substantial commitment.

Consequently, the Tribunal concluded that the visa applicant did not satisfy the criteria under clause 309.211 or 309.221 of the Migration Regulations. Therefore, the Tribunal affirmed the decision not to grant the Partner (Provisional) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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. 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? 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. ‘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?

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.Brygyda MaidenMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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