Nili (Migration)

[2022] AATA 422

Nili (Migration) [2022] AATA 422 (2 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ali Jan Nili

VISA APPLICANT:  Mrs Gul Naz

REPRESENTATIVE:  Mr Besmellah Rezaee (MARN: 1281396)

CASE NUMBER:  2007208

DIBP REFERENCE(S):  BCC2019/2308217

MEMBER:Peter Emmerton

DATE:2 March 2022

PLACE OF DECISION:  Adelaide

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

Statement made on 02 March 2022 at 2:50pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – genuine and continuing relationship – legally married in home country – limited evidence of household and social aspects of relationship while living separately – visa applicant lives in house owned by review applicant – community acceptance of marriage – review applicant’s financial support out of modest means – money transfers and informal exchanges through friends – mutual commitment in circumstances – review applicant’s health and visa applicant’s emotional support – credible and persuasive witnesses – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

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 12 March 2020 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 12 March 2020 on the basis of her relationship with her 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 because the delegate was not satisfied that the couple were in a genuine spousal relationship.

4. The review applicant appeared before the Tribunal on 2 March 2022, to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Gul Naz the visa applicant, Mr Abbas Nili the review applicant’s son and Mrs Samira Khan the review applicant’s sister in-law.

5. The review applicant was represented in relation to the review.

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 the couple is in a genuine spousal relationship as defined by section 5F of the Act.

8. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

9. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department

   Whether the parties are in a spouse or de facto relationship

10. 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. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

11. ‘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 husband and wife 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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

12. Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The delegate accepted a Marriage Certificate as evidence that the couple were legally married on 5 September 2018 in Hazara Town, Quetta Pakistan. The Tribunal also accepts this evidence and has viewed the documents and translation. 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 spousal relationship met?

14. In forming an opinion whether they are in a spousal 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.1.15A which is attached to this decision.

15. The applicant lodged a valid application for a Class UF Partner (Provisional) and BC Partner (Migrant) visa on 19 April 2019 on the grounds of being in a spousal relationship with an Australian citizen, Mr Nili.

16. The visa applicant is a 42 year old female Pakistani national by birth, who has declared no previous relationships.

17. The sponsor is a 57 year old male Afghan national by birth and an Australian citizen by grant, who has declared 1 previous married relationship resulting in 5 children.

18. The Tribunal accepts as fact that the visa applicant’s first wife died of natural causes on 4 March 2017.

19. The couple were legally married on 5 September 2018 in Hazara Town, Quetta Pakistan. The sponsor travelled to Pakistan on 27 August 2018 and returned on 21 November 2018 after the marriage formalities. He again returned to Pakistan 25 August 2019 and returned 3 months later on 25 November 2019. The Tribunal accepts that both of these 3 month periods the couple cohabited following the marriage and this was tested during the hearing with the witnesses as well as the couple.

20. According to departmental records the visa applicant has not travelled to Australia.

21. The Tribunal has considered the documentary evidence provided to the Department and the Tribunal. The Tribunal, as previously stated, has had the benefit of taking oral evidence from the sponsor at the hearing as well as oral evidence via telephone from the visa applicant. The Tribunal found all of those presenting evidence to be credible and persuasive witnesses. Answers were provided in what appeared to be an honest and candid fashion without any apparent obfuscation or collusion. The Tribunal has considered all aspects of the relationship.

22. The Tribunal has determined that there is a demonstrated clear mutual commitment to a shared life together. This is this indicated through the fact the couple are married and they have declared their marriage to a government body in Pakistan. It is also indicated through the fact that despite being separated for nearly 4 years now, the Review Applicant and Primary Visa Applicant appear to have remained mutually committed to each other. They profess that the love for each other is as strong as ever and has survived the time they have been forced to spend apart. This was explored during the hearing and verified by the witnesses.

23. The Review Applicant and Primary Visa Applicant displayed a consistent understanding of each other’s lives and show a genuine mutual interest in one another. They appear to support one another in all aspects of their life, that is, financially, socially, and emotionally in spite of the limitations imposed by distance. The relationship is in the view of the Tribunal both genuine and continuing.

24. There is no evidence before the Tribunal that the visa applicant and the review applicant have any intention to live separately apart on a permanent basis. The current separation is imposed upon them by the confluence of the Covid 19 pandemic and the initial visa refusal by the department. The Tribunal notes Review applicant’s psych report which outlines his mental health struggle due to being separated from the visa applicant these years. A copy of the psych report is before the Tribunal.

    Financial Aspects of the Relationship

25. In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses.

26. In relation to any joint ownership of real estate or other major assets, the Tribunal has determined that the couple do not jointly own any major assets or real estate. This is not in the opinion of the Tribunal unusual for a couple of modest means, currently housed in two different countries, planning to live together in Australia. It is noted that the visa applicant lives in a house in Quetta owned by the review applicant for 20-22 years.

27. The Tribunal accepts the documented evidence that the review Applicant covers all of the primary visa applicant’s expenses via his money transfers from his pension. The primary visa applicant does not work so she is consequently solely dependent on the review applicant’s money transfers which are supplemented with some rent from a family sharing the house. The review applicant has remitted money to his family frequently in the last 4 years, however he claims that he has also sent significant amounts of money with trusted friends and family that have travelled back to Pakistan and visited his family.

28. The review applicant stated that he pays for all the applicants’ expenses, including utilities, groceries, and general items for the house. This was confirmed by the visa applicant and witnesses in the hearing. Whilst substantial evidence of money transfers made by the review applicant was presented to the Tribunal, scant evidence was available regarding the money moved by friends travelling to Pakistan. This is not surprising because of the very nature of the informal money exchange processes based upon mutual trust. The Tribunal notes that receipts presented demonstrate an annual transfer of money to the visa applicant of approximately AUD $10,000 per annum.

29. The Tribunal received no evidence that the couple have any joint liabilities.

30. The extent of any pooling of financial resources, especially in relation to major financial commitments. The Tribunal notes, that money transfer receipts were presented demonstrating an average transfer of AUD$800 per month via informal money transfer agents, from the sponsor to the visa applicant.

31. Whether one person in the relationship owes any legal obligation in respect of the other. The Tribunal has determined that aside from the usual legal obligations associated with a marriage, the couple have not provided any evidence to indicate additional legal obligations.

32. The basis of any sharing of day-to-day household expenses. The Tribunal acknowledges that the couple have lived apart, post marriage and will continue to do so until the review applicant is able to take his bride to his home in Australia. Therefore, there is no verifiable evidence of day to day sharing of household expenses aside from the substantial financial contribution made by the sponsor to his wife coupled with the statements made by both parties relating to the financial support and the use of the funds.

33. The Tribunal places substantial weight on the evidence in support of the financial aspects of the relationship.

    Nature of the Household

34. In relation to the nature of the household aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

35. Any joint responsibility for the care of children. The tribunal notes that the couple are not young and neither have responsibility for young children. It was clear from questioning the witness and the couple individually, that future planning is not focussed upon having further children as a couple but is clearly a topic for future consideration.

36. Despite being separated from her 5 stepchildren the visa Applicant still has joint care for them. She supports them emotionally and talks to them regularly. Abbas Nili gave evidence in support of the couple’s assertions of joint parenting and his affection and respect for his step-mother.

37. The living arrangements of the visa applicant and the sponsor were discussed. The couple have principally been separated by geography post their marriage. The separation is not of their making as previously stated.

38. Any sharing of responsibility for housework. The Tribunal notes little opportunity has existed to share household responsibilities as they have stayed in their respective family homes. Traditional roles occurred during periods of co-habitation which were outlined during the hearing

39. The Tribunal places moderate weight on the cumulative evidence presented in relation to the nature of the household.

    Social Aspects

40. In relation to the social aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

41. The review applicant and primary visa applicant claimed that they present themselves to society as a married couple and as a couple in a committed relationship. The Tribunal has formed the view that this is obvious from the fact that the review applicant and primary applicant have provided 8 photographs of them in a diverse range of different social settings.

42. They claim that in their community in Pakistan, as well as in the Afghan community in Australia, the couple are known to be a married couple.  This is clearly demonstrated in the statutory declarations of the two witnesses in the Form 888s. In the Tribunals past experience of this culture, if the community did not in fact view the couple as married, they would have been shunned for having an affair out of wedlock.

43. The review applicant’s witnesses testified that they were present at the marriage of the review applicant and primary visa applicant. This clearly indicates that the review applicant’s and primary visa applicant’s marriage is recognised outside of their family and inside the extended family. This fact is also obvious from their marriage certificate, where witnesses attested to their marriage.

44. The Tribunal places substantial weight upon the cumulative evidence provided in support of the social aspects of their relationship.

    Nature of the Commitment

45. In relation to the nature of the persons’ commitment to each other, the Tribunal has considered the following.

46. The duration of the relationship. The Tribunal was presented with a range of testimony showing that the relationship evolved over a period of time. It notes that they may have been only been distantly known to each other prior to the more formal introduction and friendship. This was followed by the formal declaration in Marriage.

47. The length of time they have lived together. As previously stated, the couple have not lived together for lengthy periods of time, due to circumstances the Tribunal accepts are out of their control.

48. The degree of companionship and emotional support that the persons draw from each other. The Tribunal was convinced by the testimony of the couple, which was supported by the witness statements that the relationship is mutually emotionally nourishing. The demeanour of both the witness and the sponsor demonstrated to the Tribunal the emotionally genuine nature of the relationship and the couple’s desire to progress their lives together.

49. The Tribunal has been furnished with detailed medical reports which indicate the review applicant is suffering poor health. This was explored with the couple during the hearing. It is in no doubt that substantial emotional support is provided by the visa applicant and this is likely to continue into the future when the are able to reunite.

50. The Tribunal determines that the substantial evidence provided to demonstrate regular ongoing communication between the visa applicant and the sponsor further strengthens the body of evidence supporting the genuineness of this relationship.

51. Both the sponsor and the visa applicant were able to demonstrate substantial knowledge about each other, their daily activities, occupations and their future plans. The Tribunal notes that whilst the couple have a clear understanding and appreciation of each other’s perspective on important issues they didn’t always have an identical view. The couple expressed mutually compatible knowledge regarding each other’s family circumstances and extended family structures and relationships.

52. The Tribunal notes that the review applicant stated that he would have to return to Pakistan and live with his wife if she did not come to Australia. When you consider the health of Mr Nili and the fact that his family are now all here other than his wife, such a situation would clearly be suboptimal.

53. The Tribunal places substantial weight upon the cumulative evidence provided in support of the couple’s commitment to each other.

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

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

56. 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

57. 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 309.211 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Peter Emmerton
    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).