MOHAMMADI (Migration)

[2019] AATA 4744

MOHAMMADI (Migration) [2019] AATA 4744 (4 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs TAHEREH MOHAMMADI

VISA APPLICANT:  Mr ANIL MOHAMMAD MUSA

CASE NUMBER:  1918243

DIBP REFERENCE(S):  BCC2017/3063585

MEMBER:Steven Griffiths

DATE:4 October 2019

PLACE OF DECISION:  Adelaide

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 04 October 2019 at 2:01pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – documented and oral evidence of the applicants – financial aspect – household arrangements – social aspects – commitment to relationship – decision under review remitted

LEGISLATION
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

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 19 June 2019 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, Mr. Anil Mohammad Musa, applied for the visa on 16 August 2017 on the basis of his relationship with his sponsor, Mrs. Tahereh Mohammadi. 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) because the delegate was not satisfied the applicant was the spouse, as defined in s.5F of the Act, of the sponsor.  

4. The sponsor appeared before the Tribunal on 3 October 2019 to give evidence, respond to questions and present arguments. The Tribunal also received oral evidence from the applicant by telephone from India, and from the mother of the applicant and eldest son of the sponsor who attended the hearing.  

5. The review applicant was represented by her registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The Tribunal has taken into consideration all the evidence in the Department of Immigration file and the Tribunal file, including additional information provided to the Tribunal and the evidence from the Tribunal hearing.

   ISSUE

8. The issue is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the sponsor.

   BACKGOUND OF THE EVIDENCE

9. Mr. Musa was born in Kabul, Afghanistan in 1986. His father is deceased, with his mother, born 1961, and sister, born 1990, living in Australia since 2008 and are Australian citizens by grant. He has lived in India since 1/1/16 after previously living in Tajikistan and Pakistan from 2000.

10. Mrs. Mohammadi was born in Kabul, Afghanistan, in 1978. Her father is deceased, with her mother, born 1963, living in Afghanistan. She has two sisters, born 1982 & 1984, with the eldest in Afghanistan and the youngest in Germany. She married her first husband in 1996 and they had three sons and a daughter, born 1997, 1999, 2000 & 2002, with the eldest born in Afghanistan and the following three in Iran, before he died on 2006. She and the children arrived in Australia on 29/11/06 and became Australian citizens by grant on 26/1/11.

    INFORMATION TO THE TRIBUNAL

11. Since the Department made a decision the sponsor has provided further information to the Tribunal including:-

    Approximately 250 photos of parties

    Approximately 15 photos with other people

    Money transfers – from sponsor to applicant and mother of applicant to applicant – 12/10/17 $ 500, 30/4/18 $ 750, 31/5/18 $ 700, 31/6/18 $ 300, 20/10/18 $ 350, 22/10/18 $ 350, 2/11/18 $ 700, 3/12/18 $ 700, 1/2/19 $ 700, 4/7/19 $ 595, 10/7/19 $ 107, 2/8/19 $ 700 – total of 12 transfer to applicant of $ 6452 at average of $ 537 per transfer over 22 months or $293 per month

    Money transfers from mother of applicant to applicant 4/9/18 $700, 2/10/18 $ 700, 27/3/19 $700 & 10/7/18 $100 – total of 4 transfer with value of $ 2200

    Migration Agent Statement

    Flight plans for sponsor to India of 1 week in May 2019

    Registration of visit by sponsor to India May 2019

    Property owner registration of tenancy in India for visits by sponsor

    Flight plan for sponsor to India for 28/9/17 to 19/10/17 and 22/2/18 to 20/3/18 and 26/7/18 to 29/8/18 

    Flight plan for sponsor to India to Afghanistan for 19/9/17 to 28/9/17

    Is the sponsor an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen?

12. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The Tribunal has been provided with evidence the sponsor became an Australian citizen by grant on 26 January 2011.  

    Whether the parties are in a spouse or de facto relationship

13. ‘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).

14. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

15. At the time the visa application was made the visa applicant provided evidence of being married to the sponsor with a Marriage Certificate from India as evidence of their marriage on 24 May 2017.

16. The Tribunal has regard to the document and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).

    CLAIMS AND FINDINGS

    Financial aspects of the relationship that must be considered include:-

    (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 expense

17. The Tribunal determines, from the oral evidence provided, at the time of the visa application and this decision, no real estate or major assets was jointly owned by the parties. 

18. The Tribunal determines, from the oral evidence provided, at the time of the visa application and this decision, the parties do not have any joint liabilities.

19. The Tribunal determines, from the oral evidence provided, at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.

20. The Tribunal accepts the documented and oral evidence that since 2016 the applicant has been a refugee living in India and is not legally able to work, while noting that in Afghanistan his was a singer.

21. The Tribunal accepts the documented and oral evidence of the parties that the sponsor has consistently been providing funds for the applicant to assist with paying for his rent, food and clothing.

22. The Tribunal accepts the oral evidence of the sponsor, applicant and witnesses that the two eldest children of the sponsor, who both work, have contributed regularly to the financial support the sponsor has provided to the applicant.

23. The Tribunal determines, from the documented and oral evidence, the financial support provided to the sponsor to represent the pooling of financial resources and the sharing of day-to-day household expenses.   

    Nature of the household aspects that must be considered include:-

    (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

24. The Tribunal accepts the photographic, documented and oral evidence of the sponsor having 4 children, aged 17 to 22, with the two youngest living at the home of the sponsor.

25. The Tribunal accepts the oral evidence of the parties of the applicant being, with the sponsor, a decision maker on the needs of and issues the children are dealing with, with the sponsor having individual conversations with the children on issues and that the children respect his opinion.

26. The Tribunal determines, from the oral evidence of the parties and witnesses, that the sponsor and applicant have joint responsibility for the care and support of children.

27. The Tribunal accepts the photographic, documented and oral evidence of the parties that the while living in different countries, since May 2017 they have spent approximately 135 days together in India during the 5 trips the sponsor has made, staying in the rented apartment of the applicant on each occasion.   

28. The Tribunal accepts the oral evidence of the parties that, if permitted to live in Australia, the family will live in a single home in South Australia.

29. The Tribunal accepts the oral evidence, confirmed by the parties independently, on the household roles each undertook while living together in India for approximately 135 day since May 2017 and determines, at the time of application and this decision, the parties live in different countries and but when together shared responsibility for housework.

    Social aspects of the relationship that must be considered include:-

    (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

30. The Tribunal accepts the photographic, documented and oral evidence and determines at the time of application and this decision that the parties were married on 24 May 2017 and have always represent themselves to other people as being married to each other. 

31. The Tribunal notes the oral evidence of the parties and witnesses at the hearing of the activities undertaken to make members of the Afghan community of Adelaide aware of the marriage and determines this to represent the parties representing themselves to other people as being married.

32. The Tribunal accepts the documented, photographic and oral evidence of family and friends of the parties and determines, at the time of application and this decision, the opinion of family, friends and acquaintances as being supportive of the relationship and marriage.

33. The Tribunal accepts the photographic, documented and oral evidence, confirmed by the parties independently, and determines, at the time of application and this decision, the parties have planned and undertaken joint social activities while living together in India.

    Nature of the commitment to each other that must be considered include:-

    (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.

34. The Tribunal accepts the evidence of the parties having been known to each, through the mother of applicant who has been a long term friend of the sponsor, since 2010, with a relationship developing from April 2016, the applicant proposing on 20 April 2017, the parties meeting on 17 May 2017 and marrying on 24 May 2017.      

35. The Tribunal accepts the documented and oral evidence of the parties living together for approximately 135 days during the 5 trips to India made by the sponsor.

36. The Tribunal accepts the oral evidence of the parties on the daily contact they have and determines, at the time of application and this decision, that an exceptionally high level of companionship and emotional support occurs between the parties.

37. The Tribunal notes the oral evidence from the parties of the personal issues the sponsor and her children have dealt with since the death of her husband, their father, in 2006 and the involvement of the applicant on a daily basis in talking with the sponsor about the needs of the family and being involved, remotely, in family decisions and determines this to be an example of the companionship and emotional support that occurs between the parties.  

38. The Tribunal determines, from the oral evidence of the parties and the cultural importance attached to relationships in Afghanistan, that the parties, at the time of application and this decision, have had and continue to have an ongoing commitment to each other and see the relationship as being long-term.

    Any other circumstances of the relationship

39. The Tribunal notes the health issues of the sponsor and accepts the documented evidence from her treating medical professionals in which they state that the presence of the applicant in Australia will significantly assist her. 

40. The Tribunal notes the documented and oral evidence of the sponsor having been pregnant in 2018 following a visit to India and that the parties will be seeking to have children.

41. The Tribunal notes the oral evidence of the parties, and the son of the sponsor, of the sponsor discussing her relationship with the children, and receiving their support, before committing to marriage.

42. The Tribunal notes the very strong evidence of support from the eldest child of the sponsor for the marriage on his oral evidence to the hearing.

43. The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together to the exclusion of all others, with the relationship genuine and continuing and they had and previously and will, in Australia, live together.

44. The Tribunal accepts that the parties have been in a committed relationship since early 2017 and while living in different countries they have spent approximately 135 days together in India and they are not living separately and apart on a permanent basis. 

45. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and the time of this decision.

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

47. 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

48. 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

    Steven Griffiths
    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).