Mohammadi (Migration)
[2021] AATA 4395
•25 October 2021
Mohammadi (Migration) [2021] AATA 4395 (25 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Mrs Masoumeh Mohammadi
VISA APPLICANTS: Mr Abdulrahim Wahidi
Ms Zahra Wahidi
Mr Amir Hossain WahidiCASE NUMBER: 1821248
DIBP REFERENCE(S): BCC2018/6529
MEMBER:M. Edgoose
DATE:25 October 2021
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
Statement made on 25 October 2021 at 3:42pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – no pooling of financial resources – nature of the household – limited statutory declarations in support of the relationship – evidence of regular communication – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221, 309.311, 309.321; r 1.15CASES
He v MIBP [2017] FCAFC 206
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 Immigration on 16 May 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s 65 of the Migration Act 1958 (the Act).
The first named visa applicant (the visa applicant) applied for the visa on 2 January 2018 on the basis of their relationship with their 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211(2).
The review applicant appeared before the Tribunal on 17 September 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ali Zahedi the son of the review applicant and Ms Zahra Wahidi a visa applicant and the daughter of the primary visa applicant.
The review applicant was represented in relation to the review by her representative.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Whether the parties are in a spouse or de facto relationship
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. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian permanent resident.
‘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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The review applicant submitted to the Department a copy of the translated marriage deed that took place on 21 September 2017. 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?
The delegate noted that the requirements outlined in reg 1.15A of the Regulations for a spousal relationship were considered. The Tribunal has also considered these requirements.
Financial aspects of the relationship
The review applicant provided limited documentation to the Tribunal regarding the financial aspects of the relationship. The review applicant confirmed at hearing that they have no joint ownership of real estate or other major assets; no joint liabilities; no pooling of financial resources, especially in relation to major financial commitments; and neither party in the relationship owes any legal obligation in respect to the other.
The Tribunal acknowledges several financial transactions and money transfers between the review applicant and the primary visa applicant. The visa applicant stated in his relationship statement dated 15 June 2021 that the review applicant sends him money for daily expenses and medical treatment. In and of themselves, the evidence of money transfers provided to the Tribunal does not establish that the parties have joint financial responsibilities, although the Tribunal acknowledges that the review applicant at times shares her finances with the primary visa applicant.
The review applicant provided evidence of a purchase of a property in Victoria in the review applicant’s name. The review applicant confirmed at hearing that the property is in her name only. She further mentioned that she purchased the property for AUD600,000 and has a mortgage of AUD510,000 through the ANZ bank. The couple indicated to the Tribunal that this property was to be a shared home between the parties.
The Tribunal acknowledges that the review applicant provided evidence that the visa applicant has been listed as the beneficiary of her superannuation dated 22 September 2021. The Tribunal places some weight on this.
The Tribunal, having given regard to the oral and written evidence is not satisfied that the couple have pooled their financial resources. The Tribunal finds no evidence that the couple have committed to joint ownership of real estate or other major assets, or that they have assumed any joint liabilities. The Tribunal finds no evidence that either party owes any legal obligation in respect of the other. The Tribunal does accept that the review applicant has transferred a limited amount of money to the visa applicant. Given the constraints of residing in separate countries however, the Tribunal accords little weight to the consideration of the financial aspects of the relationship.
Nature of the household
The review applicant stated that they have had no children. The visa applicants currently live overseas in Iran while the review applicant is in Australia. The Tribunal finds that there is no joint responsibility for the care and support of children. At hearing the couple informed the Tribunal that they would like to have children in the future. The review applicant further stated that she had four children of her own from a previous relationship. Those children are aged 22, 20, 16 and 10 and live with the review applicant. The visa applicant lives with his son and daughter in Iran.
The Tribunal notes that the parties spent roughly one month together in September 2017, when the review applicant travelled to visit to marry the visa applicant. The Tribunal further notes that the review applicant travelled to Iran in 2019 to visit the visa applicant for roughly two weeks. The parties indicated that the short-term nature of the trip was due to the review applicant’s Australian citizenship application. This is supported by the review applicant’s movement records. The couple informed the Tribunal that when they have been together in person, they have shared the responsibility of housework. The Tribunal places little weight on this claim given the limited time the couple have spent together in person.
On consideration of the limited evidence, the Tribunal therefore finds limited evidence of the sharing of responsibility for housework, and no evidence of joint responsibility for the care and support of children. The Tribunal places limited weight on the consideration of the nature of the parties’ household in this matter.
Social aspects of the relationship
The couple informed the Tribunal that they represent themselves to other people as being married. The review applicant informed the Tribunal that her friends and acquaintances know about the nature of the relationship. The review applicant provided the Tribunal with evidence of photographs of them in public settings and with other individuals. The Tribunal has reviewed the photographs and gives them some weight.
The review applicant informed the Tribunal that when together in person in Iran they attended a number of social gatherings with family members. The review applicant further provided the Tribunal with several statutory declarations in support of the relationship. These were from friends of the review applicant, as well as the review applicant’s son. The statements provided were in support of the relationship and attested to the genuine and ongoing nature of the relationship. The Tribunal gives limited weight to the statutory declarations given that there appeared to be no statutory declarations from the visa applicant’s family, friends and acquaintances submitted to the Department or the Tribunal.
The Tribunal acknowledges the couple have provided some evidence about the social aspects of the relationship. The oral evidence given by the couple at the hearing to the Tribunal indicates that during the limited time they have spent together in person they have enjoyed each other’s company. The Tribunal is not satisfied that the social aspects of the relationship attest to a genuine and continuing spousal relationship between the parties.
Nature of persons’ commitment to each other
At hearing the review applicant claimed to have met the visa applicant for the first time in late 2016 or early 2017 through the review applicant’s sister. The review applicant provided the Tribunal with evidence of sample communication records evidencing communication between the parties. The Tribunal is satisfied that the parties communicate with each other over the telephone.
The couple did not meet in person until September 2017, several days before they were married. The review applicant and visa applicant submitted relationship statements to the Tribunal detailing the particulars of the relationship. The couple married in Iran on 21 September 2017. The visa applicant stated that the review applicant is a stepmother to his children and they provide support to each other. The Tribunal gives little weight to this statement given that the review applicant has only spent a limited amount of time with the visa applicant’s adult children.
The couple both stated to the Tribunal that they provide each other with a degree of companionship and emotional support through regular communication via the social media application WhatsApp and WhatsApp video. The review applicant informed the Tribunal that they talk about their problems and guide each other through them. The visa applicant stated to the Tribunal that they also provide each other with spiritual support. The Tribunal acknowledges that the review applicant’s relationship statement is consistent with the visa applicant’s statement, and echoes the same points made in relation to the nature of the parties’ commitment to each other. The couple both informed the Tribunal that they certainly see the relationship as a long term one.
Having regard to all the circumstances of the relationship, the Tribunal is not satisfied that when the application was made and at the time of this decision, the review applicant and visa applicant demonstrated a mutual commitment to a shared life to the exclusion of others. The Tribunal is not satisfied that their relationship is genuine and continuing. The Tribunal is not satisfied that the review applicant and the visa applicant live together or are not living separately and apart on a permanent basis. The Tribunal is not satisfied that the parties are in a spousal relationship.
Any other circumstances of the relationship
The review applicant indicated that she is experiencing adverse mental health outcomes due to the extended separation from the visa applicant, which was supported by medical evidence. The medical evidence indicated that the review applicant may benefit psychologically from the visa applicant’s presence in Australia. The Tribunal acknowledges that the review applicant is receiving ongoing support for her medical conditions; however, the Tribunal does not consider this to be a factor in the overall decision reached in this matter.
In unsworn and undated statements made to the Tribunal, both the review applicant and the visa applicant indicated that one of the secondary applicants suffers from mental incapacity and is wholly dependent on the review applicant and her partner. The statements detail the applicant’s depression and mental incapacity. The secondary applicant also provided the Tribunal with an undated statement detailing her mental health challenges and her dependency on her father and on the review applicant. Medical evidence from her treating psychiatrist was provided to the Tribunal in support of these claims. These claims were further supported by a sworn statement made by the review applicant. The Tribunal acknowledges the medical conditions of one of the secondary applicants; however, the Tribunal does not consider this to be a factor in the overall decision reached in this matter.
The review applicant’s representative made submissions to the Tribunal in support of the secondary applicant’s dependence on the review applicant and the primary visa applicant. The submissions indicated that the secondary applicant suffers from mental illness and is unable to subsist on her own due to her mental incapacity. The submissions further indicated the secondary applicant’s marital status as single, and that due to this and the deteriorating security situation in Afghanistan at the time of this decision, the secondary applicant would not be able to work or live in Afghanistan without some degree of risk to her life or her safety. Accordingly, the submissions indicated that due to this situation, the secondary applicant is wholly reliant on the review and primary visa applicants. The Tribunal acknowledges that one of the secondary applicants may have some mental health issues however the issue before the Tribunal is whether or not the review applicant and visa applicant are in a genuine relationship. As the Tribunal is not satisfied that the couple are in a genuine relationship the Tribunal makes no finding in relation to the mental capacity of the secondary applicants in this matter.
Mr Ali Zahedi the son of the review applicant informed the Tribunal that the visa applicant is a good influence for both himself and his mother, the review applicant. Mr Zahedi said that he is 22 years of age and does not want to worry about his mother when he moves out of home. He further told the Tribunal that he believes that the visa applicant is the right person for his mother. The Tribunal gives some weight to the oral evidence provided to the Tribunal by the review applicant’s son.
Ms Zahra Wahidi a visa applicant and the daughter of the primary visa applicant mentioned to the Tribunal that she is very positive about the relationship and happy that her father has found happiness. She further mentioned that she is 26 years of age, lives with her father and brother and that her father is responsible for her financially and emotionally. She relies on him for everything. The Tribunal gives some weight to the oral evidence provided to the Tribunal by the primary visa applicant’s daughter.
On the basis of the above the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision.
Therefore, the visa applicant does not meet cl 309.211 and cl 309.221.
Given that the Tribunal has found that the primary visa applicant does not satisfy the criteria for the grant of a (Provisional) (Class UF) Subclass 309 visa, the secondary applicants, Ms Zahra Wahidi and Mr Amir Hossain Wahidi, therefore cannot meet the secondary criteria of cl 309.311 and cl 309.321 for the grant of a (Provisional) (Class UF) Subclass 309 visa.
For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.
M. Edgoose
MemberATTACHMENT - 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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