Munawar (Migration)

[2018] AATA 5089

Munawar (Migration) [2018] AATA 5089 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Umaira Munawar

VISA APPLICANT:  Mr Zohair Ahmad

CASE NUMBER:  1713458

DIBP REFERENCE(S):  BCC2016/1680852

MEMBER:P. Maishman

DATE:7 December 2018

PLACE OF DECISION:  Perth

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;

·r.2.03A.

Statement made on 07 December 2018 at 10:09am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – spouse or de facto partner of sponsor – Ahmadiyya community members – marriage not recognised by Pakistan – ability to register their domestic relationship contingent on invalid marriage – applicants not validly married – satisfies defacto spousal relationship criteria – decision under review remitted

LEGISLATION

Marriage Act 1961
Migration Act 1958, ss 65, 5CB, 5CB(2), 5F(2)(a)
Migration Regulations 1994, Schedule 2, cl 309.211, rr 1.09A(3), 2.03A
Relationships Act 2008 (Vic)

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 22 June 2017 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 Zohair Ahmad, applied for the visa on 5 May 2016 on the basis of his relationship with his sponsor, the review applicant, Mrs Umaira Munawar (the sponsor). 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 because the delegate was not satisfied the visa applicant was the spouse or de facto partner of the sponsor.

4. The sponsor appeared before the Tribunal on 5 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant (the applicant) and Amjad Mubashar, who is the sponsor’s brother.

5. The Tribunal was assisted by an interpreter in the Urdu and English languages.

6. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant is the spouse or de facto partner of the sponsor.

   Whether the parties are in a spouse or de facto relationship

9. 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’s file contains a copy of a letter from the Department of Immigration and Border Protection, dated 31 August 2015, addressed to the sponsor. The letter notifies the sponsor that her Refugee and Humanitarian (Class XB) visa (Subclass 201) applied for on 22 July 2014 was granted on 26 August 2015. The notice states that the visa allows the sponsor to remain permanently in Australia. On the evidence the Tribunal is satisfied that the sponsor is an Australian permanent resident.

10. In the present case the applicant claims to be the spouse of the sponsor.

11. ‘Spouse’ is defined in s.5F of the Act, which 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: s.5F(2)(a).

12. In this case, the delegate was not satisfied that the parties were married to each other under a marriage that is valid for the purposes of the Act.

    Are the parties validly married?

13. Generally, if a marriage takes place outside Australia, in order for it to be recognised under Australian migration law it must be recognised under the laws of the government of the country in which that marriage occurred.

14. Section 12 of the Act mirrors part VA of the Marriage Act 1961 in determining whether or not a marriage is recognised under Australia's migration law.

15. The applicant and sponsor belong to the Ahmadiyya community. The parties gave evidence that they are distant cousins and their families arranged their union. The sponsor said she was previously married and was widowed in 2010.

16. The applicant provided the Department a copy of a marriage certificate issued by Nazarat Islah-O-Irshad Rishta Nata certifying that a Nikah (Marriage) Ceremony was performed on 7 October 2014. The applicant and the sponsor were present at the Nikah. The parties gave evidence that the Rukhsati ceremony was completed when they both travelled to Nepal in September 2017. The sponsor gave oral evidence that the Pakistan government do not recognise Ahmadiyya as Muslims and do not register marriages conducted under their faith. The delegate acknowledges that it is not usually possible for Ahmadi to legally register their marriages in Pakistan. 

17. Members of the Ahmadiyya sect of Islam in Pakistan are not formally recognised as Muslims by the Pakistani Government. Therefore, despite claiming to be part of the Muslim faith they are regarded as non-Muslim and are prevented from having their (otherwise lawfully conducted) marriages registered legally by the state.

18. The Pakistan Government refuses to register the Nikah, however, it does allow Ahmadiyya sect members to be acknowledged formally as married in the Family Registration Certificate and on their National Identity Card; these have been provided to the Department.

19. The applicant provided a copy of a Relationship Certificate issued by the Registrar of Births, Deaths and Marriages in Victoria in September 2017. The certificate certifies that the sponsor and applicant registered a domestic relationship in Victoria in September 2017. The Tribunal asked the sponsor how she had obtained a Victorian relationship certificate when she was resident in Western Australia. The sponsor advised that she had moved to Victoria from Perth in February 2017 because her employment prospects were better in Melbourne. The applicant has family members in Victoria and she stayed with them for about eight or nine months until returning to Western Australia, where she resumed living with her brother. She obtained the Relationship Certificate to prove her relationship. 

20. Information obtained from the Births, Deaths and Marriages Victoria website[1] says you can register a domestic relationship between two adults who are a couple if, amongst other things, you are not married. Section 6 of the Relationships Act 2008 (Vic) says people may apply to register their registrable relationship if, amongst other things, each person in the relationship is not married.

    [1] accessed 5 December 2018

21. The Tribunal considers that the applicant and sponsor would not have been able to register their relationship under Victorian law unless their marriage was invalid. The Tribunal finds the applicant and sponsor are not married to each other under a marriage that is valid for the purposes of the Act.

22. On the evidence, the parties were not 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 parties in a de facto relationship?

23. As the visa applicant and review applicant are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a married relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s.5CB(2).

24. In forming an opinion as to whether they are in a de facto relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects, the nature of the visa applicant’s and review applicant’s household and their commitment to each other, as set out in r.1.09A(3), which is attached to this decision. Each of the specific matters contained in r.1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

25. The Tribunal considered the financial aspects of the applicant and sponsor’s relationship. There is no evidence that the parties have joint ownership of real estate or other major assets. There is no evidence that the parties have any joint liabilities. The parties do not owe any legal obligation in respect of each other. The parties live in different countries and have not established a pattern of sharing day-to-day household expenses. The Department’s file contains evidence of the applicant transferring money to the sponsor in May 2016. The Tribunal was provided with a number of foreign-exchange receipts from when the applicant and sponsor travelled to Nepal together in September 2017. The sponsor gave oral evidence that the applicant had sent her some money and she had sent him some money. The applicant sent parcels for the sponsor and her daughter. The applicant is employed as a tutor in Pakistan. The sponsor relies on Centrelink because her command of the English language is inhibiting her attempts to find work. The parties gave evidence that if the applicant could come to Australia he would take up work and if possible the sponsor will also work so they could establish themselves, pay rent on their own property, and eventually buy a house. The Tribunal is satisfied that, if not for their geographical separation, the parties would pool their financial resources and share the burden of day-to-day household expenses. The Tribunal considers that the financial aspects of the applicant and sponsor’s relationship are indicative of a couple in a spousal or de facto relationship.

26. The Tribunal considered the nature of the applicant and sponsor’s household. The applicant and sponsor have not lived in the same household together since they were married. They travelled to Nepal in September 2017 and shared a bed in the same hotel room. The sponsor’s daughter travelled to Nepal with them. The sponsor explained that her daughter was very young when her father was killed and the applicant is the only father figure that her daughter has known. The sponsor said her daughter spoke to the applicant over the internet every day after school. Her daughter misses the applicant and often questions when he is going to come and join them. Mr Mubashar is the sponsor’s brother and presently shares accommodation with the sponsor and her daughter. Mr Mubashar’s evidence supported the proposition that the applicant and the sponsor’s daughter have a very close relationship. He observed that they talk frequently together, independently of the sponsor. The applicant and sponsor gave consistent evidence that they both expected to share the house work when they got to live together. The Tribunal is satisfied that the nature of the applicant and sponsor’s household would be indicative of a couple in a spousal or de facto relationship.

27. The Tribunal considered the social aspects of the applicant and sponsor’s relationship. The parties gave evidence that their wedding ceremony, held in Pakistan in October 2014, was the public demonstration of their union and commitment to one another. Their immediate family, extended families, relatives, neighbours and friends recognise they are married. The sponsor gave evidence that people she associates with in Perth know that she is married and she tells them that her husband is soon to join her. She finds it embarrassing and uncomfortable to always be seen without her husband for such an extended time. She looks forward to being able to be together, for her daughter to have her father be part of her school life, and to be able to go shopping and interact socially together. The Tribunal is satisfied that the social aspects of the applicant and sponsor’s relationship are indicative of a couple in a spousal or de facto relationship.

28. The Tribunal considered the applicant and sponsor’s commitment to each other. The Tribunal accepts the parties’ evidence that their relationship was arranged, with their mutual agreement, by their respective families. They had individual engagement celebrations in early 2013. They participated in their Nikah in October 2014. The Tribunal raised the delegate’s concern that since the Nikah the applicant and sponsor had not cohabitated in a room together. The sponsor explained that although the Nikah was the public demonstration of their union, and the time from which the community considered they were married, it was not appropriate for the couple to live together until after the Rukhsati ceremony. The sponsor said that she and her husband agreed to take time for him to finish his studies and obtain work so that he could support her properly. The sponsor was granted a humanitarian visa to come to Australia with her daughter in August 2015. The applicant and sponsor did not have any opportunity to participate in the Rukhsati ceremony until they could both afford to travel to see each other again. This occurred in September 2017 when they travelled to Nepal and had their Rukhsati ceremony, which was attended by about 50 friends and relatives. The parties both gave evidence that they consider their relationship to be permanent and long term. They want to be united as a married couple and plan to work together to buy a house. The Tribunal is satisfied that the applicant and sponsor’s commitment to each other is indicative of a couple in a spousal or de facto relationship

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

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

    Are the additional criteria for a de facto relationship met?

31. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in r.2.03A. Both members of the couple must be at least 18 years old: r.2.03A(2). In this case, at the time of application, the applicant and the sponsor were at least 18 years old.

32. The applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: r.2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

33. The applicant has provided evidence that the relationship is registered under the Relationships Act 2008 (Vic) as a kind of relationship prescribed in the Acts Interpretation (Registered Relationships) Regulations 2008: r.2.03A(5). Accordingly, the 12 month requirement does not apply.

34. For these reasons the Tribunal is satisfied that the visa applicant meets the additional criteria prescribed in r.2.03A.

35. 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

36. 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;

    ·     r.2.03A.

    P. Maishman
    Member

    
    

    ATTACHMENT  -  Extract from Migration Regulations 1994

    1.09ADe facto partner and de facto relationship

    (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

    Note 1   See regulation 2.03A for the prescribed criteria applicable to de facto partners.

    Note 2   The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.

    Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).