Naqshbandi (Migration)

[2023] AATA 3967

Naqshbandi (Migration) [2023] AATA 3967 (11 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Sadaf Naqshbandi

CASE NUMBER:  1928121

HOME AFFAIRS REFERENCE(S):          BCC2017/1758533

MEMBER:M. Edgoose

DATE:11 July 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations.

Statement made on 11 July 2023 at 10:59am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – understanding of sponsorship obligations – failure to complete the preferred Form 40SP – Form 888 Statutory Declaration submitted – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 17 May 2017 on the basis of her relationship with her sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 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 visa applicant did not satisfy cl 820.211(2) and cl 820.221 as the sponsor had failed to complete the preferred Form 40SP and therefore was not satisfied that the sponsor understood his sponsorship obligations.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

5. Clauses 820.211(2) and 820.221 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 an Australian citizen.

6. ‘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 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?

7. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. As per the marriage certificate submitted to the Tribunal on 17 February 2020 the couple married on 31 October 2016 at 16 John Monash Drive, Skye Victoria. The marriage celebrant was Ashuqullal Haqiqzai, registration number V – 27412. 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).

8. On 11 July 2023 the sponsor and spouse in this matter, Mr Shams Naqshbandi, submitted to the Tribunal a signed Form 888 Statutory Declaration stating:

   I myself am the applicants husband and sponsor. I live with Sadaf Naqshbandi and our son Omar Naqshbandi. We have a loving family life. Our Marriage is ongoing and genuine and will continue to sponsor Sadaf Naqshbandi.

   Myself Shams Naqshbandi and Sadaf Naqshbandi both deeply love and adore one another. Our relationship is genuine, ongoing and strong. We have mutual respect and care for eachother and appreciate our life together with our son Omar Naqshbandi.

   I believe Sadaf Naqshbandi will asset to Australian society. I would love if my wife had peace of mind knowing shes part of Australian society and not have to worry about the visa status. Sadaf is a honest and trustworthy and kind hearted.

   Based on the sponsor’s statutory declaration to the Tribunal dated 11 July 2023, the Tribunal is satisfied that Mr Shams Naqshbandi, fully understands his sponsorship obligations and undertakings in relationship to his relationship with his wife Mrs Sadaf Naqshbandi. They now have a son, Omar, and are a genuine family unit.

9. The Tribunal notes that two further Form 888’s statutory declarations dated 10 July 2023 were submitted from a Omarr Raonaq and Homa Miazoi Raonaq in support of the couple being in a genuine relationship.

10. Given that the delegate refused the initial visa application on 20 September 2019 because the sponsor had failed to complete the preferred Form 40SP and therefore the delegate was not satisfied that the sponsor understood his sponsorship obligations. It is clear to the Tribunal that at time of making its decision on 11 July 2023 that the sponsor fully understands his sponsorship obligations. Not only are the couple still in a genuine relationship they are now parents to their son, Omar.

11. Therefore, the applicant meets cl 820.211(2) and cl 820.221.

12. 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 820 visa.

    DECISION

13. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    M. Edgoose
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).