Mohammad (Migration)

[2023] AATA 4620

Mohammad (Migration) [2023] AATA 4620 (11 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tamim Mohammad

VISA APPLICANT:  Mrs Mst Selina Akhter

CASE NUMBER:  1910175

DIBP REFERENCE(S):  BCC2017/93501

MEMBER:Wan Shum

DATE:11 December 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 11 December 2023 at 9:38am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – parties gave consistent evidence that reflected a sound knowledge of each other’s family and their health conditions – they do not live separately and apart on a permanent basis – parties have now been married for nearly 9 years –parties are in a genuine spousal relationship – couple view their relationship as a long-term one – Tribunal is satisfied their relationship is a genuine and continuing relationship – parties are validly married –  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 Home Affairs on 22 February 2019 to refuse to grant a Partner (Provisional) (Class UF) visa to the visa applicant under s 65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 5 January 2017 on the basis of her relationship with the review applicant. At that time, Class UF contained 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). Relevantly in this case, one of the primary criteria that must be satisfied by the visa applicant is that she is the spouse or de facto partner of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

3. The delegate did not consider that the evidence and information provided was sufficient to demonstrate that the applicant is the spouse, as defined under s 5F of the Act, of such a person and refused to grant the visa.

4. The review applicant (the sponsor) sought review of that decision and appeared before the Tribunal on 28 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by phone with the assistance of an interpreter in the Bengali and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa applicant is a Bangladeshi national, born in December 1996. She applied for the visa on the basis of her relationship with Mr Tamim Mohammad, her sponsor, born in May 1976. Various documents were submitted with the application and subsequently in support of the existence of a genuine relationship.

7. The parties claim to have an arranged marriage and first met on 10 October 2014 during one of the sponsor’s visits to Bangladesh. It was claimed that the marriage took place on 5 January 2015, but the sponsor was in Australia at that time. The sponsor went to Bangladesh in February 2015 and stayed there for a few months before returning to Australia.

8. After considering the evidence before the Department, the delegate refused the application on 22 February 2019 on the basis that cl 309.211(2) was not met.

9. 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. The issue in the present case is whether the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

10. In the present case the visa applicant claims to be the spouse of the sponsor who is an Australian citizen.

11. ‘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.

    Whether the parties are in a spouse or de facto relationship

    Are the parties validly married?

12. Only parties that are validly married may be considered to meet the requirements of a married relationship. The parties provided a translation of a Nikah Nama (an Islamic marriage contract) which states that the marriage between them was contracted on 5 January 2015. A request was made for a marriage certificate issued by the Republic of Bangladesh which was provided confirming that the marriage took place and was registered by the Office of Muslim Marriage Registrar and Kazi, Puthia Paurashava, Puhtia, Rajshahi, Government of the People’s Republic of Bangladesh on same date. However, as noted in the decision record, the sponsor was in Australia on this date. During the hearing, the sponsor confirmed that the marriage took place while he was in Australia and explained that he gave his oral consent over the telephone.

13. The Tribunal notes that the sponsor travelled to Bangladesh around one month after the marriage took place and asked why they did not wait until he was in the country. He explained that his mother insisted on the marriage proceeding at that time, because she wanted him to be married to the visa applicant and did not want there to be any chance that the marriage would not proceed. The Tribunal notes that by that time, he was 38 and claims that he had rejected his mother’s previous attempts to match him with other women. Noting that the visa applicant had only just turned 18 on 2 December 2014 and would likely have had other suitors presented for marriage, the Tribunal is prepared to accept that the marriage took place as claimed on 5 January 2015 in spite of the sponsor not being physically present. The Tribunal accepts that Muslim marriages can proceed in this way based on country information.[1]

    [1] 'Nikah Nama - Muslim Marriage', Australia: Department of Foreign Affairs and Trade (DFAT), CX216588

14. 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).

    Are the other requirements for a spouse relationship met?

15. Having considered each matter in reg 1.15A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under reg 1.15A(2), the Tribunal is of the view that the parties meet the definition of spouses.

16. Financial aspects of the relationship – up until the date the application was made, only the sponsor had been working as the visa applicant had only recently completed high school according to the documents provided. A statement for a joint bank account held with Southeast Bank Limited was provided but there were only two transactions for cheque book issuing fees. The evidence reflects that the sponsor transfers money to the visa applicant and had done so on 6 occasions after they were married and before the visa application was lodged. Prior to the hearing, the Tribunal received further evidence of money transfers which were made in 2022 and 2023. The sponsor explained that he does not fully support the visa applicant financially at the current time as she lived with his parents and sometimes stayed with her own, so her expenses were covered by whoever’s parents she was staying with. At the hearing, the sponsor showed the Tribunal a cheque book for the joint account but advised that the visa applicant did not use the account. He claimed that she preferred to physically attend the bank branch in person whenever he did transfer money. The visa applicant’s evidence was consistent on this point and the Tribunal notes that the receipts reflect that the amounts were usually collected at a bank located in the same town as her parent’s residence. Given this, while there exists a joint bank account, it does not appear to be used jointly and the Tribunal does not consider that it can be described as evidence of joint finances. Notwithstanding this, the Tribunal considers it plausible that the visa applicant generally does not have any living expenses that are not covered by her parents or parents-in-law, so the money the sponsor sends by money exchange are for extra spending and irregular in nature and amount.

17. In respect of sharing of day-to-day household expenses, the typical evidence of household expenses in the form of bills or receipts has not been provided. Up until the time when the application was made, they claim to have only spent short periods of 2 to 3 months of time living together whenever the sponsor returned to Bangladesh. The longest period they claim to have lived together was after the sponsor returned to Bangladesh in January 2020 and then remained there until 28 May 2022. The sponsor explained that this was due to the COVID-19 pandemic. During this time, they each gave evidence that they lived together in a unit next door to the sponsor’s parents.

18. There is no evidence of joint ownership of assets or joint liabilities; nor are there any legal obligations owed to the other party. While the evidence of joint finances is limited to money transfers from the sponsor to the visa applicant, given they usually reside in different countries and the applicant has either lived with the sponsor’s parents or with her own since their marriage, the Tribunal considers that the transfers of money from the sponsor to the visa applicant are reflective of a married relationship.

19. Nature of the household – the parties do not currently live together as the visa applicant lives in Bangladesh, living in the household of the sponsor’s parents and her own parents, while the sponsor lives in Sydney, Australia. The sponsor’s claim is that every time he returns to Bangladesh, he lives with the visa applicant as a married couple. According to the sponsor’s movement records, he has been outside Australia for around 50 months since January 2015 when he went there after their marriage. They claim that when they have lived together that the visa applicant helps the sponsor’s mother with cooking and the visa applicant claimed that they have hired help for the domestic chores. There are no children of the relationship and there is not any joint responsibility for care and support of children. They have both expressed the desire to start a family, but explained that there is a “medical issue”. The sponsor initially wrote in his statement in May 2023 that this was because of a health/medical issue on his side, and he had been taking medication for it. However, the letters provided on the day of the hearing indicate that the visa applicant had attended an appointment with a fertility specialist and undertaken some testing in November 2022 to investigate the cause. The visa applicant’s evidence was that she had gone to see a gynaecologist with her mother and that she was intending to see a specialist doctor about the issues. Given this, it appeared to indicate that the sponsor’s earlier statement that it was a problem on his side was not truthful. The sponsor confessed that he had not sought treatment when he had made the statement in May 2023 but had wanted to take the responsibility for their not having started a family yet as the social stigma that married women who had not had children was high in Bangladesh. The letter from the visa applicant expresses her feelings about the situation. While the sponsor’s statement contained a claim that was not true and did raise doubts as to his evidence generally, the Tribunal is willing to accept that it was an attempt to protect the visa applicant from unwanted consternation from others.

20. Social aspects of the relationship – the parties claim to have represented themselves to other people as being married to each other, giving evidence at the hearing that the reception was held on 20 February 2015 and was attended by nearly 600 people. There are no photographs as evidence of this and the sponsor’s explanation was that the only photographs were taken on his uncle’s camera but that the camera went missing when his uncle, who had come from America, went sightseeing. The Tribunal has some doubts about the size of the reception given that the evidence to the Department was that the wedding was small with only relatives attending. There are some statutory declarations from the sponsor’s friends who have attested to being aware of the visa applicant and believing that they are in a genuine relationship. Mr Mazdar attended the hearing and gave evidence that he had attended the reception and also met the visa applicant on a separate occasion when he and his wife and children went to Bangladesh earlier this year. Following the hearing, photographs of the visa applicant with it was claimed the sponsor’s parents were provided.

21. The sponsor and visa applicant gave consistent evidence that reflected a sound knowledge of each other’s family and their health conditions.

22. Nature of persons' commitment to each other – the parties have been married for nearly 9 years now. In that time, they have spent in total over 3 years living together on separate occasions when the sponsor has travelled to Bangladesh. The visa applicant has never been to Australia, although they did apply for a visitor visa for her which was refused. There is evidence that they had maintained regular contact via messaging on their mobile phone devices and by phone evidenced by the applicant’s mobile bill statements provided to the Department. In addition, the sponsor spent over 2 years in Bangladesh during COVID-19 and has provided some photographs of them together. The parties gave evidence that they have a very good relationship, support each other and wish to live together as a married couple.

23. In respect of the requirement that they live together or do not live separately and apart on a permanent basis, the parties live in different countries, with the visa applicant in Bangladesh and the sponsor living in Sydney, Australia. They live together whenever the sponsor returns to Bangladesh. The Tribunal considers that the evidence supports a conclusion that they do not live separately and apart on a permanent basis and finds s 5F(2)(d).

24. Having considered all of the circumstances and evidence provided, the Tribunal accepts that the parties see the relationship as long-term. The Tribunals finds that they have a mutual commitment to shared life to the exclusion of others; are in a genuine and continuing relationship; and that while they live in different countries, they do not live separately and apart on a permanent basis.

25. 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.

26. Therefore, the visa applicant meets cl 309.211 and cl 309.221.

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 of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations

    Wan Shum
    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).