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

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).
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.
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.
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.
The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Monro (Migration)

Details

AGLC: Monro (Migration) [2023] AATA 2702
Case: [2023] AATA 2702
Decision Date: 9 August 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa by Mr Fazal Karim, a citizen of Pakistan, sponsored by Ms Lizel Forbes Monro, an Australian citizen. The core dispute revolved around whether the parties had a genuine and continuing spousal relationship at the time of the visa application and at the time of the decision. The case was heard by Edward Howard, a Member of the Tribunal.

The legal issues before the Tribunal were whether the parties satisfied the criteria under clauses 309.211 and 309.221 of the Migration Regulations 1994. These clauses require that at the time of the visa application and at the time of the decision, the applicant is the spouse or de facto partner of an Australian citizen, permanent resident, or eligible New Zealand citizen. The Tribunal was required to consider all the circumstances of the relationship, including financial, household, social, and commitment aspects, as outlined in regulation 1.15A(3).

The Tribunal's reasoning focused on assessing the genuineness of the relationship based on the evidence presented. While the parties had exchanged contact details, commenced dating, become engaged, and married, and had lived together for 90 days after marriage, the Tribunal found significant deficiencies. Specifically, there was limited pooling of finances, despite a joint tenancy agreement. Furthermore, while photographs of social activities were provided, the parties demonstrated minimal awareness of each other’s families and exhibited limited companionship and emotional support. The Tribunal applied the principle that evidence of subsequent events can be relevant if it logically demonstrates the existence or non-existence of the relationship at the relevant time.

Ultimately, the Tribunal concluded that the applicant did not satisfy the criteria for the grant of the visa. Accordingly, the decision under review, which affirmed the refusal of the visa, was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.decision The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.Edward HowardMemberAttachment - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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