Muhammadi (Migration)

[2021] AATA 4933

Muhammadi (Migration) [2021] AATA 4933 (22 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Fatima Muhammadi

VISA APPLICANT:  Mr Ghulam Rasul Ramazani

CASE NUMBER:  2006739

DIBP REFERENCE(S):  BCC2017/4506506

MEMBER:Antoinette Younes

DATE:22 November 2021

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(2) of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations.

Statement made on 22 November 2021 at 11:22 AM

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – parties have four children together – copy of Marriage Certificate provided – parties are validly married – applicants are in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act– decision under review remitted

LEGISLATION
Marriage Act 1961 (Cth)
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, rr 1.03,1.15, 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 Immigration on 3 March 2020 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (applicant) applied for the visa on 28 November 2017 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 (Cth) (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 applicant did not satisfy cl 309.211.

4. The sponsor appeared before the Tribunal on 17 November 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and a witness.

5. The sponsor was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether cl 309.211 is met.

   Whether the parties are in a spouse or de facto relationship

8. 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 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 applicant claims to be the spouse of the sponsor who is now an Australian permenant resident.

9. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the 2 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: ss 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?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.  The couple claim to have married on 2 April 1997 in Afghanistan. In support of the visa application, they provided a copy of an unofficial marriage certificate “Confessors Statement” obtained on 10 November 2016 from the Afghan Consulate General, Quetta, Pakistan.  At the time of their marriage, the sponsor was aged 20 and the applicant was 25.   

11. In support of the visa and review applications, the couple provided to the Tribunal a copy of the marriage certificate which was registered in October 2020 through the Afghan Embassy in Canberra, Form 888 statutory declarations of witnesses, statements, telephone and text message records, photographs, a tazkera registered in October 2020, evidence of financial support sent to the applicant, school payment advice, and evidence of communication in 2017 to 2019 and 2020 to 2021.

12. The sponsor gave evidence that they were married in 1997 in Afghanistan when she was about 20 years old, and the applicant was about 25 years old. She confirmed that the couple has 4 children aged 22, 20, 17 and 13 who came with her to Australia in 2013.  The Tribunal asked the sponsor about the whereabouts of the applicant at the time of her coming to Australia.  She stated that he went missing for about 8 years and he was found in 2016.  She stated she was not sure what happened but thought that he had been taken by the Taliban.  She gave evidence that the applicant went to Pakistan to her parents’ home and they contacted her at the end of 2016.  In terms of seeing the applicant, she stated that the last time she saw him was before he went missing and that although she obtained a visa to visit Pakistan to see him, she did not go as she did not have the money.  She stated that since 2016, she has been communicating with him by telephone and she has been supporting him financially with whatever she could afford because he does not have a job.  She receives Centrelink benefits and is studying English. 

13. The applicant gave evidence that in 2008, he was taken for nearly 8 years by the Taliban.  He confirmed that he and the sponsor have been communicating by telephone since 2016.  He stated that he misses his wife and children.

14. The couple’s daughter gave evidence supporting her parents’ version of events. 

15. Although the Tribunal has some concerns about aspects of the version of events relating to the claim that the applicant had been kidnapped by the Taliban for 8 years, those concerns are outweighed by the cumulative evidence before the Tribunal concerning the genuineness of the relationship.

16. In order to determine whether a marriage is valid for the purpose of the Act, consideration must be given to the Marriage Act 1961 (Cth) (Marriage Act), which is largely incorporated into the Act for this purpose by s 12.[1] The Marriage Act defines marriage as the union of 2 people (of any gender) to the exclusion of all others, voluntarily entered into for life.[2] The Marriage Act requires marriages to be solemnised,[3] and has other requirements for their validity depending on whether they were solemnised under Australian or foreign law. Part VA of the Marriage Act provides for the recognition of foreign marriages.[4] Essentially, foreign marriages that are recognised under the law of the country in which they are solemnised will be recognised in Australia as valid, subject to 5 basic exclusions which are similar to the grounds on which marriages solemnised in Australia are void, namely:[5]

    ·     either of the parties was married to someone else and that other marriage was recognised in Australia as valid;

    ·     the parties are within a prohibited relationship;

    ·     the consent of either of the parties is not a real consent;

    ·     where one party was domiciled in Australia at the time of the marriage – either of the parties was not of marriageable age;

    ·     the marriage is voidable under the law under which the marriage took place.

    [1] See Li v MIAC (2007) 96 ALD 361 at [10].

    [2] Marriage Act s 5.

    [3] Marriage Act ss 23A, 23B, 40, 41, 48, 73.

    [4] The object of part VA is to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages 1978: see s 88A of the Marriage Act. This includes same-sex marriages solemnised outside of Australia and same-sex marriages solemnised by or in the presence of a foreign diplomatic or consular officer in Australia that is recognised as valid in the relevant overseas country. Sections 88D(4), 88EA and the previous definition of marriage in s 5(1) of the Marriage Act as being a ‘union of a man and a woman’ prohibited the recognition in Australia of foreign same-sex unions. These provisions were repealed or amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) (No 129, 2017) with effect from 9 December 2017 and applicable to all live applications at that date where it is necessary for the Tribunal to determine whether or not 2 persons are in a spouse relationship.

    [5] See Marriage Act ss 88B, 88C, 88D and 88E.

17. The Tribunal is satisfied on the evidence, namely the marriage certificate registered in October 2020 through the Embassy of Afghanistan in Canberra that the applicant’s marriage is recognised by the authorities of Afghanistan, that neither party was married to another person at the time, that the parties are not in a prohibited relationship, that the parties were of a marriageable age, and that the marriage is not void. It follows that the Tribunal finds that 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?

18. The Tribunal needs to consider the matters in reg 1.15A of the Regulations, such as mutual commitment to a shared life as a married couple to the exclusion of all others, whether the relationship is genuine and continuing, and whether the couple live together, or do not live separately and apart on a permanent basis. In forming an opinion about these matters, regard must be had to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other.

    Financial aspects of the relationship

19. The couple has not lived together since 2008.  The sponsor has been in Australia since 2013 with her 4 children.  The couple re-established contact in 2016.  The sponsor has been sending the applicant money.  The Tribunal accepts that due to their circumstances, the couple has not had the opportunity to join their assets or share liabilities. 

20. Although there is limited evidence of joint ownership of assets, joint liabilities, or pooling of financial resources, the Tribunal does not consider that to be adverse given the parties’ circumstances.

21. The Tribunal is satisfied that the couple’s situation, namely residing in different countries, has limited their ability to pool resources or to have joint assets or liabilities, but is nevertheless consistent with being in a genuine relationship.

    Nature of the household

22. The parties live in different countries.  Due to limited finances and not wanting to leave her children, the sponsor has not travelled to see her husband.  They have provided screenshots from the sponsor’s telephone of communication with the applicant from late 2017 to 2021.  The Tribunal observes that some of the communication shows photographs of the children including their accomplishments, such as the daughter’s grant of citizenship, and school awards.

23. The Tribunal is satisfied that despite living in different countries, the parties are in a genuine and continuing relationship.

    Social aspects of the relationship

24. The Tribunal is mindful that the Form 888 witnesses have declared that they know the sponsor but have only heard of the applicant.  In her statement, the couple’s daughter Sajida provides evidence that her parents’ marriage has always been a happy one.  In evidence, she confirmed their relationship.  Although there are no photographs of the couple together in a social setting, the sponsor has advised that the photographs provided to the Tribunal are the only ones they have one being an old photo of the couple with their son Sajid and another of the applicant with his 2 small daughters in the snow before he disappeared.

25. The Tribunal has placed weight on the Form 888 declarations, the daughter’s statement and the photographs provided.

    Nature of the persons' commitment to each other

26. The couple has been married since 1997 and they have 4 children.   During the hearing, they expressed their desire to live together as a married couple in Australia.  The Tribunal is satisfied that they see the relationship as being long term.

27. Having considered the above matters, the Tribunal finds that the parties have a mutual commitment to a shared life to the exclusion of others, that they are in a genuine and continuing relationship, and that they live together or not separately and apart on a permanent basis. The sponsor is an Australian permanent resident. The Tribunal therefore finds that the requirements of cl 309.211(2) and cl 309.221 are met.

28. 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

29. 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(2) of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations.

    Antoinette Younes
    Senior 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).