Maroof (Migration)

[2021] AATA 5524

Maroof (Migration) [2021] AATA 5524 (2 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Tahira Maroof

VISA APPLICANT:  Mr Mohammad Daud Sharifi

CASE NUMBER:  2008082

DIBP REFERENCE(S):  BCC2017/2266962

MEMBER:Antoinette Younes

DATE:2 December 2021

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(2) of Schedule 2 to the Regulations;

·cl 309.221 of Schedule 2 to the Regulations.

Statement made on 2 December 2021 at 04:12 PM

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – couple has been married since 1993 – parties have three children together – applicant and his second wife had divorced – applicants are in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65
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 1 March 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 (applicant) applied for the visa on 27 June 2017 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.309.211(2).

4. The review applicant appeared before the Tribunal on 24 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and a witness.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether cl 309.211(2) is met.

   Are the parties in a spouse or de facto relationship?

7. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the 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 review applicant who is an Australian permanent resident.

8. ‘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 the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

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

10. The couple claim that they were married on 27 August 1993 in Kabul, Afghanistan.  The couple provided a Marriage Certificate issued on 22 January 2017 by the Supreme Court of Afghanistan.  The Certificate records the date of marriage as 27 August 1993.  The delegate was satisfied that the marriage is valid.  There is nothing before the Tribunal to suggest otherwise.

11. On the evidence, the Tribunal finds 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?

12. The Tribunal needs to consider the matters in reg 1.15A of the Regulations, such as mutual commitment to a shared life as a married couple to the exclusion of all others, whether the relationship is genuine and continuing, and whether the couple live together, or do not live separately and apart on a permanent basis. In forming an opinion about these matters, regard must be had to all 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.

    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

13. The applicant and the sponsor have lived in different countries since the sponsor and the children migrated to Australia in 2013.  In assessing the financial aspects of the relationship, the Tribunal has given consideration to that important fact.  The applicant has claimed, and this is corroborated by the son’s and sponsor’s oral evidence, that the sponsor sends him money from his son’s salary to support his daily living, as the circumstances where he currently lives are very difficult. The parties have claimed, and provided receipts in evidence, that they shared multiple gifts with each other at the time the sponsor visited Pakistan.

14. The Tribunal accepts the evidence, albeit limited, that the sponsor has been sending the applicant money.  The Tribunal accepts that due to their circumstances, the couple has not had the opportunity to join their assets or share liabilities. 

15. Although there is limited evidence of joint ownership of assets, joint liabilities, or pooling of financial resources, the Tribunal does not consider that to be adverse given the parties’ circumstances.

16. The Tribunal is satisfied that the couple’s situation, namely residing in different countries, has limited their ability to pool resources or to have joint assets or liabilities, but is nevertheless consistent with being in a genuine relationship.

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

17. The couple married in Afghanistan on 27 August 1993, and they have three children.  However, the applicant married another woman in 2005 and had three children with her.  The couple has claimed that the applicant’s second wife and their three daughters drowned at sea when going to Europe to seek asylum.  There is a document from the police headquarters in Kabul Province referring to their deaths.  The Tribunal accepts this as being plausible.  In any case, the parties provided corroborative evidence that the applicant and his second wife had divorced prior to her death. The Tribunal questioned the couple extensively about the applicant’s second marriage.  The sponsor gave evidence, which the Tribunal accepts, that a man’s marriage to two (or more) women in the Islamic Afghani culture is an acceptable and lawful practice. 

18. The Tribunal accepts the parties’ claim that while the sponsor was residing in Pakistan with their three children, the applicant was residing in Afghanistan with his second wife but visited the sponsor often in Pakistan before they travelled to Australia. The parties claim, and there is corroborative evidence that they have maintained regular communication, that they send each other gifts and, after saving some money, the sponsor has returned to visit him in Peshawar, in 2017. The applicant claimed they spent approximately 40 days together.

19. They have provided screenshots of telephone communications and photographs of the couple together and with their children.

20. The Tribunal is satisfied that despite living in different countries, the parties are in a genuine and continuing 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

21. The couple provided statutory declarations (Forms 888) signed by the sponsor’s friends in Australia and a statement from their son attesting to the genuineness of the relationship. There are photos of the couple and with members of their family.  Their son gave evidence supporting the couple and expressing his views that the relationship is genuine.

22. Given the couple’s circumstances, the Tribunal has given weight to the available material that the parties represent themselves to others as being in a genuine and continuing 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

23. The couple has been married since 27 August 1993, although the applicant married his second wife in 2005 and they had three children together.  As stated above, the Tribunal accepts the religious and cultural aspects of the applicant being married to two women at the same time.  The Tribunal accepts that although the applicant was living with his second wife and their three children in Afghanistan, he continued to visit the sponsor and their three children in Pakistan, providing the sponsor and their children with companionship and emotional support.  The Tribunal accepts that after the death of his second wife and his children with her, the applicant moved to live in Peshawar, Pakistan on 12 December 2015.

24. The Tribunal asked the sponsor why she had only visited the applicant on one occasion, in 2017.  She stated that she was apprehensive about travelling on the Titre de Voyage, because of potential ill-treatment in Pakistan and the assumption that the Titre de Voyage was not a legitimate document.  The Tribunal asked the sponsor about her previous declaration that she had separated from her husband in 2005 as he remarried and was living in Afghanistan with his second wife. She attributed this to interpreting/translation error.  The Tribunal is not persuaded.  However, the sponsor might have made that statement for migration advantages but that does not mean that the whole of her version of events or overall credibility must be questioned.  Similarly, with the applicant’s earlier declaration that his relationship with the sponsor resumed prior to her migration to Australia in 2013.

25. The Tribunal has some concerns but those are outweighed by the balance of the evidence before the Tribunal, which leads the Tribunal to place significant weight on the length of the duration of the relationship – the couple has been married since 1993 and they have three children together.  The Tribunal is satisfied that they see the relationship as being long term.

26. Having considered the above matters, the Tribunal finds that the parties have a mutual commitment to a shared life to the exclusion of others, that they are in a genuine and continuing relationship, and that they intend to live together or not separately and apart on a permanent basis. The sponsor is an Australian permanent resident. The Tribunal therefore finds that the requirements of cl 309.211(2) and cl 309.221 are met.

27. 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

28. 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(2) of Schedule 2 to the Regulations;

    ·cl 309.221 of Schedule 2 to the Regulations.

    Antoinette Younes
    Senior 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).