Monro (Migration)

[2023] AATA 2702

Monro (Migration) [2023] AATA 2702 (9 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Lizel Forbes Monro

VISA APPLICANT:  Mr Fazal Karim

REPRESENTATIVE:  Ms Suzanne Weel

CASE NUMBER:  2210989

DIBP REFERENCE(S):  BCC2021/1980587

MEMBER:Edward Howard

DATE:9 August 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 09 August 2023 at 3:47pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – limited pooling of finances – joint tenancy agreement – photographs of social activities – minimal awareness of each other’s families – limited companionship and emotional support – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

CASES

Ally v MIAC [2008] FCAFC 49
Bretag v IRT [1991] FCA 582
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
MIEA v Poche (1980) 4 ALD 139

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 23 May 2022 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 applied for the visa on 18 October 2021 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 visa applicant did not satisfy cl.309.211 and cl.309.221 of Schedule 2 to the Regulations.

4. The review applicant appeared before the Tribunal on 27 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant Mr Fazal Karim, together with evidence from Mr Muhammad Babar Younas, Mr Salman Mukhtar and Mr Mohammad Khan.

5. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   BACKGROUND

7. The visa applicant, Mr Fazal Karim, aged 43 years, is a citizen of Pakistan. The sponsor, Ms Lizel Forbes Monro, aged 54 years, is an Australian citizen.

8. The parties claim to have first met on 20 March 2019. The review applicant drove a friend of hers, a mechanic, who was a member of the Filipino community, to pick up a motor vehicle from the visa applicant’s residence when she was introduced to the visa applicant. Their next contact was in about May 2019 when they exchanged contact details and begin to send messages to each other. They claim to have commenced going out together from about August 2019.

9. The evidence is that the visa applicant proposed to the review applicant on 3 August 2020. The review applicant accepted his proposal on 14 August 2020 and the parties were married on 7 July 2021. Following their wedding, the parties lived together for 90 days before the visa applicant departed Australia on 5 October 2021. He is currently residing in Pakistan.

   ISSUES AND THE LAW

10. There is a two-stage process for offshore Partner visas. An applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first or temporary stage.

11. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the applicant and the sponsor were in a partner relationship at the time of the application. Evidence of events after 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.[1]

    [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

12. The issue in the present case is whether at the time of the visa application and the time of this decision, the parties satisfy the criteria under cl.309.211 and cl.309.221.

    Whether the parties are in a spouse or de facto relationship

13. 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 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 sponsor who is an Australian citizen.

14. ‘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).

15. 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 of the relationship, the nature of the parties’ 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?

16. 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?

    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.

17. The parties provided evidence of a joint bank account which was opened on 7 June 2021.  Statements were provided for the period June–August 2021 and February–July 2022.  the Tribunal has also been provided with statements from the sole bank account of the review applicant for the period from June–July 2022.  There is limited evidence that the parties have pooled their financial resources. The evidence presented suggests that the visa applicant has, on a number of occasions, requested financial assistance from the review applicant even though he is aware that the review applicant is on a fixed income through Centrelink benefits and is undergoing treatment for cancer.

18. The Tribunal accepts that due to the fact that the parties resided together for 90 days following their wedding and otherwise have lived in different countries, the financial aspects of the relationship are limited. However, the Tribunal is not satisfied that the financial arrangements are consistent with the financial situation of a committed and genuine relationship. There is no evidence that the parties have joint ownership of any major assets although they have incurred joint liabilities for a limited period of time (approximately 90 days) i.e., from the date of their marriage until the visa applicant departed Australia. The Tribunal is not satisfied that the evidence indicates the pooling of financial resources and the sharing of household expenses commensurate with a genuine married couple who have combined their financial relationship. The Tribunal places limited weight on the financial aspects of the relationship.

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

19. The parties claim to have first met in person in March 2019, then met again in May 2019 and started going out together in about August 2019. They were married on 7 July 2021 and 90 days later, the visa applicant departed Australia on 5 October 2021. The evidence of the review applicant is that the parties commenced living together after their wedding.

20. The parties resided together for 90 days prior to the visa applicant’s departure from Australia. The parties provided a joint tenancy agreement for the property at Woodridge, Queensland being a six-month agreement from 21 September 2021 until 22 March 2022. The parties lived at that address together for only 14 days before the visa applicant departed Australia. After that time the review applicant shared the residence with a flatmate.

21. The parties gave only limited evidence as to the development of the relationship from about May 2019 onwards. The Tribunal accepts that for the 90 days following their marriage the parties lived together including for 14 days in the residence at Woodridge, Queensland however there is limited evidence consistent with that of a genuine and committed relationship. In the circumstances, the Tribunal places limited weight on the household aspects of the 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.

22. The parties submitted limited photographs of themselves including social activities such as dining out. The parties also submitted photographs of their wedding. It appears to have been attended by one friend of the review applicant and three friends of the visa applicant. The photos provided appear to disclose that the parties had dinner with the four people who attended their wedding ceremony. There are no photographs of the parties together with any family members.

23. The Tribunal places limited weight on the social aspects of the 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.

24. The evidence of the parties is that they first met on 20 March 2019. The review applicant was driving a friend of hers, a mechanic, who was a member of the Filipino community, to pick up a motor vehicle from the visa applicant’s residence. Their next contact was in about May 2019 when they exchanged contact details and begin to send messages to each other. They claim to have commenced going out together from about August 2019.

25. The evidence of the parties is that the visa applicant proposed to the review applicant on 3 August 2020. The review applicant accepted his proposal on 14 August 2020 and the parties were married on 7 July 2021. Following their wedding, the parties lived together for 90 days before the visa applicant departed Australia on 5 October 2021. The parties have provided evidence of living together for a period of 14 days at the residence at Woodridge, Queensland in the form of a residential tenancy agreement prior to the visa applicant’s departure.

26. The evidence of the review applicant was that her husband is living in Pakistan at present with his mother and three of his children from his first marriage. They are his younger three children - he also has three older children who do not live with him.

27. The review applicant stated that she has seen other members of his household in the background whilst on video calls to the visa applicant. She has never been introduced to his mother or spoken with family members during those calls. She stated that this is because his mother does not understand English, although this does not explain why her husband could not have translated the conversation between them. It is concerning that in almost two years away, the visa applicant would not have attempted to introduce his wife to his mother and children, to establish a relationship between them, when he was capable of translating the conversation between them. It is further concerning that the review applicant never sought to be introduced to her husband’s mother and children in order to seek to establish a relationship between them.

28. The review applicant continues to undergo treatment for cancer. It is concerning that whilst the review applicant is currently undergoing chemotherapy treatment, the visa applicant, as recently as early July 2023, was requesting that she forward money to him urgently.

29. On 5 July 2023, the visa applicant stated that he needed ‘some urgent money’. The review applicant replies that ‘I’m very weak financially’. On 11 July 2023 he said, ‘I need around $700’. When asked at the hearing why he needed this money, the visa applicant replied that he had to buy things for his children.

30. In response to that request, the review applicant wrote ‘Honey i am trying my best to send u soon again but I don’t have that much money. U know my financial situation, the car rego is expired I need for that $400 to renew rego’. The evidence of the review applicant is that her motor vehicle is now unregistered and therefore she cannot use it.

31. The financial demands which the visa applicant has made upon the review applicant, with the full knowledge of her serious illness and ongoing treatment, together with her limited financial means (i.e., Centrelink benefits) are inconsistent with a loving and genuine relationship and show little emotional or psychological support to the review applicant and scant regard or concern for her well-being.

32. The evidence before the Tribunal is inconsistent with the commitment expected of a genuine long-term relationship. There is no evidence of a financial relationship between the parties. The parties have spent limited time living together following their wedding. There is no persuasive evidence of the living or household arrangements during the 90 days after their wedding, before the visa applicant departed Australia on 5 October 2021. The parties have not met in person since that time. There is little evidence that the visa applicant provides regular or ongoing emotional or psychological support to the review applicant. The Tribunal finds that these circumstances cast significant doubt on the commitment of the parties to each other and to a long-term relationship.

33. The Tribunal heard evidence from Mr Mohammed Babar Younas, on behalf of the parties, as to the genuineness of their relationship. Mr Younas first met the visa applicant through a community event in 2014. He kept in regular contact with the visa applicant between 2015 – 2018. He stated that the review applicant and visa applicant had visited his house to attend a dinner in about 2020. He saw the parties again at their wedding in July 2021. He has also met with the review applicant when he was in Pakistan several months ago. He stated that he has given the review applicant money to assist her on three occasions since the visa applicant left Australia.

34. The Tribunal also heard evidence from Mr Salman Mukhtar on behalf of the parties. Mr Mukhtar first became acquainted with the visa applicant through a Pakistani community association in 2015. He normally had contact with the visa applicant once a month from that time until the visa applicant departed Australia. He has also visited the visa applicant whilst he was visiting Pakistan. Mr Mukhtar attended the wedding of the parties and met the review applicant on two or three other occasions.

35. Finally, the Tribunal heard evidence from Mr Mohammad Khan on behalf the parties. Mr Khan has known the visa applicant since 2013 explaining that the visa applicant lived with Mr Khan in a house owned by his parents. He first met the review applicant in 2019 at a social event and on a few occasions after that time. Since the visa applicant has been out of Australia, he has seen the review applicant on approximately 5 to 10 occasions to assist her with money or medicine. At one point in his evidence, Mr Khan stated that the visa applicant was still living with Mr Khan and his family at the time that he left Australia and that Mr Khan drove him to the airport. When this inconsistency was raised with Mr Khan, he stated that he had been mistaken and that the visa applicant had moved out of his family’s residence at the time of his marriage to the review applicant. The Tribunal accepts Mr Khan’s explanation in this regard.

36. The Tribunal, having carefully considered all of the evidence in relation to the nature of the commitment in the relationship, concludes that the degree of companionship and emotional and psychological support the parties drew from each other was minimal and that the nature of the parties’ commitment to each other was not consistent with a genuine, long-term married relationship. The Tribunal places limited weight on the nature of the commitment of the parties.

    Information covered by section 375A certificate

37. The Department file included information provided by a member or members of the public, making allegations in relation to the matter.

38. Pursuant to section 359AA: the review applicant and visa applicant were each orally informed at the Hearing that the Department had provided adverse information to the Tribunal, which would be the reason or part of the reason for affirming the decision to refuse the visa; the gist of the adverse information was put to both of the parties; they were each informed of the relevance of the information to the review and the consequences of the information being relied upon in affirming the decision under review; they were each orally invited to comment on or respond to the information; and the parties were advised that they make seek additional time to comment on or respond to the information. The review applicant requested a brief adjournment to confer with her representative and the visa applicant chose to respond the information immediately. The parties each denied the allegations.

39. In the absence of any corroborating details and evidence, the Tribunal places no weight on the information.

    Overall Conclusion

40. The Tribunal has considered separately and as a whole, the evidence before it regarding each of the prescribed matters under r. 1.15A, that is, the financial, household, social and commitment aspects of the relationship.

41. In forming a view, the Tribunal is mindful of the authority in: Ally v MIAC [2008] FCAFC 49 at [32]–[35]; and Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

42. Having carefully considered all the evidence and for the reasons above, the Tribunal is not satisfied that at the time of application, the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others; that the relationship between them was genuine and continuing; and that they lived together and not separately or apart on a permanent basis. The Tribunal is therefore not satisfied the requirements of section 5F of the Act were met the time of the visa application.

1. The Tribunal is further not satisfied that at the time of this decision the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is also not satisfied that they have lived together or not separately and apart on a permanent basis. The Tribunal is therefore not satisfied the requirements of section 5F(2)(a)-(d) of the Act are met at the time of this decision.

2. The Tribunal is therefore not satisfied that the parties’ relationship fulfilled the criteria contained in clause 309.211(2) of the regulations at the time the visa application was made and at the time of this decision. Therefore, The Tribunal finds that the visa applicant does not meet the requirements of clauses 309.211(2) and 309.221.

3. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

   decision

4. The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

   Edward Howard
   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).