Osrin (Migration)

[2021] AATA 4939

Osrin (Migration) [2021] AATA 4939 (12 November 2021)

`

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Norzuraiha Binti Osrin

VISA APPLICANT:  Mr Farman Ullah

CASE NUMBER:  1936663

DIBP REFERENCE(S):  BCC2018/3433277

MEMBER:Christine Kannis

DATE:12 November 2021

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(2) of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 12 November 2021 at 4:59pm

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – copy of Marriage Certificate provided – parties are validly married – applicants are currently 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
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, rr 1.03,1.15, Schedule 2, cls 309.211, 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 23 December 2019 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 10 September 2018 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 the visa applicant.

3. The delegate refused to grant the visa on the basis that the visa applicant did not meet cl.309.211(2) because the delegate was not satisfied that his relationship with the review applicant met the definition of spouse under the Act.

4. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

5. The review applicant appeared before the Tribunal on 1 November 2021 to give evidence and present arguments. The Tribunal received oral evidence from the review applicant’s mother. The Tribunal also received evidence by telephone from the visa applicant, the review applicant’s sister and brother-in-law and the visa applicant’s father.

6. The Tribunal was assisted by interpreters in the Malay, Pashto and English languages.

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 relationship between the visa applicant and the review applicant meets the definition of ‘spouse’ in s.5F of the Act.

9. Section 5F of the Act 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 as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, the nature of the household and the persons’ commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

10. 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.   

    Are the parties validly married?

11. A Marriage Registration Certificate issued by the government of Khyber Pakhtunkhwa showing the parties were married on 7 July 2018 was provided. On the basis of the written evidence before it, and in the absence of any evidence to the contrary, the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the purpose of the Act as required by s.5F(2)(a).

    Background

12. The review applicant is an Australian citizen by grant.

13. The visa applicant is a Pakistan national.

14. The parties claim to have met on Facebook on 10 March 2017 after which an online relationship developed. At that time the visa applicant was living in Malaysia and the review applicant was living in Australia.

15. The parties first met in person in Malaysia on 22 June 2017. They married in Pakistan on 7 July 2018 and the visa applicant has remained there since that time.

16. The Tribunal considered the evidence against the r.1.15A(3) factors.

    Are the other requirements for a spouse relationship met?

    Financial aspects

17. The Tribunal considered the evidence in relation to the financial aspects including joint ownership of assets, joint liabilities, any legal obligations owed to the other party, the extent of pooling of financial resources and any sharing of day-to-day household expenses.

18. In the Sponsorship for a partner to migrate to Australia form the review applicant said in her culture as a Muslim they do not share bank accounts before marriage. She said she transfers money to the visa applicant through Western Union. Evidence of money transfers demonstrating that the review applicant sent money to the visa applicant in the period from November 2018 to May 2020 was provided.

19. At the hearing the review applicant told the Tribunal that she sends money to the visa applicant when he needs it and said this occurs every three to six months. She said they do not have a joint bank account or any joint assets or liabilities.

20. There is no evidence indicating that the parties have any joint assets or any other joint liabilities. There is no evidence that the parties have any legal obligations to each other.

21. The Tribunal accepts that the parties resided in different countries at the time application and time of decision and that they had not established joint financial arrangements and accordingly places minimal weight on this factor. The Tribunal accepts that the review applicant sent money to the visa applicant. 

    Nature of the household

22. The Tribunal considered the evidence in relation to the nature of the household including any joint responsibility for care and support of children, the parties’ living arrangements and any sharing of housework.

23. The review applicant visited Pakistan the visa applicant for approximately two months in 2018 during which time they married. The review applicant told the Tribunal that she visited the visa applicant again in 2019 for approximately two months and again stayed with the visa applicant and his family in their family home. She also visited the visa applicant for two months in 2020. The review applicant said during her visits she was not permitted to undertake any household tasks and said she was treated like a princess.

24. At the time of application, the review applicant was in Pakistan visiting the visa applicant and living with his family in their family home.

25. At the time of decision, the parties live in different countries.

26. The Tribunal accepts that the parties reside in different countries and that they have not shared a household together and accordingly places minimal weight on this factor.

    Social aspects of the relationship

27. The Tribunal considered the evidence in relation to the social aspects of the relationship including whether parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.

28. The review applicant told the Tribunal that her family met the visa applicant when they travelled to Malaysia for three weeks in June 2018. During this visit the parties held an engagement ceremony. In early July 2018 the review applicant and her mother travelled to Pakistan for the parties’ wedding.

29. The review applicant told the Tribunal that when she visited the visa applicant in Pakistan in 2018 and 2019, they spent time with each other and with his extended family. She said they also travelled within Pakistan and took short trips to the north and the south of the country. The visa applicant gave generally consistent evidence in this regard.

30. A statutory declaration dated 22 September 2019 made by the review applicant’s mother, Latipah Binti Jantan, was provided.  At the time of making the declaration Ms Jantan said she had known the visa applicant for 2 years 6 months. She said her daughter had given her the visa applicant’s number and she had chatted with him.  Her reasons for her belief that the relationship is genuine and continuing included that she prays they continue to love each other. At the hearing the Tribunal put to Ms Jantan that she met the visa applicant 1 year 3 months prior to making the statutory declaration and therefore the information regarding having known him for 2 years 6 months was incorrect. She agreed that she had made an error. Her statutory declaration was in English and she confirmed that she had limited English reading and writing skills. She said the review applicant helped her complete the document. In response to the Tribunal asking the reasons for her belief that the parties’ relationship is genuine, Ms Jantan said that the visa applicant can look after her daughter. She said when she was in Pakistan in 2018 he looked after the review applicant by taking her sightseeing and caring for her when she was unwell. The Tribunal accepts this evidence however given the general nature of the reason, gives it limited weight.

31. A written statement dated June 2020 and signed by the visa applicant’s father, Mr Zakir Ullah, was provided in support of the genuineness of the parties’ relationship. He said he believed the parties are in a genuine relationship but did not give reasons for his belief. The statement was in English and no certified translation was provided to the Tribunal. At the hearing Mr Ullah told the Tribunal that a teacher had helped him with the statement. In response to the Tribunal asking the reasons for his belief that the parties’ relationship is genuine Mr Ullah said that he based his belief on his observation of the love between the parties. The Tribunal accepts this evidence however given the general nature of the reason, gives it limited weight.

32. A written statement dated 2020 signed by the review applicant’s parents, Mr Osrin Bin Kanan and Ms Latipah Binti Jantan, was provided in support of the genuineness of the parties’ relationship. They said they believed the parties are in a genuine relationship but did not give reasons for their belief. Accordingly, the Tribunal gives this evidence minimal weight.

33. A statutory declaration dated 22 September 2019 made by the review applicant’s sister, Ms Norhazlina Binti Osrin was provided.  At the time of making the declaration Ms Osrin said she had known the visa applicant for 2 years 6 months. Ms Osrin said she knew about the visa applicant from social media and from the review applicant chatting with him. Her reasons for her belief that the relationship is genuine and continuing were that she believed the visa applicant can take care of the review applicant. At the hearing the Tribunal put to Ms Osrin that she met the visa applicant 1 year 3 months prior to making the statutory declaration and therefore the information regarding having known him for 2 years 6 months was incorrect. She agreed that she had made an error. Ms Osrin told the Tribunal that she has spent only three weeks with the parties as a couple. This was prior to the time of application when the review applicant’s family travelled to Malaysia in 2018. Given the very limited time Ms Osrin has spent with the parties, the fact that she has not spent any time with them after marriage and the general nature of her reasons for her belief that the relationship is genuine, the Tribunal gives this evidence minimal weight.

34. The review applicant’s brother-in-law, Mr Mohd Idrus, told the Tribunal that he met the visa applicant during the three weeks he was in Malaysia. This was prior to the time of application when the review applicant’s family travelled to Malaysia in 2018. He told the Tribunal that he believes the parties’ relationship is genuine because they are suited to each and they are in love. Given the very limited time Mr Idrus has spent with the parties, the fact that he has not spent any time with them after marriage and the general nature of his reasons for his belief that the relationship is genuine, the Tribunal gives this evidence minimal weight.

35. An undated Character Certificate/Statements of Witness made by the visa applicant’s cousin, Mr Ibad Ullah was provided in which he said he had known the visa applicant since childhood and said he has a good moral character, is a hard worker and is punctual. He said he had known the review applicant for one year and she has a good moral character, is a hard worker and is punctual. A document dated 20 June 2020 described as a statutory declaration made by the visa applicant’s cousin, Ibadullah Azizullah, was provided in which he said he believed the parties will always be in a genuine and continuing marriage. Given that the visa applicant’s cousin did not provide any reasons for his belief that the parties’ relationship is genuine and continuing, the Tribunal gives his evidence no weight.

36. An undated Character Certificate/Statements of Witness made by the visa applicant’s friend, Mr Amjad Ali Amir Muhammad, was provided in which he said he had known the visa applicant since childhood and said he has a good moral character, is a hard worker and is punctual. He said he had known the review applicant for one year and she has a good moral character, is a hard worker and is punctual. A document dated 20 June 2020 described as a statutory declaration made by the visa applicant’s close friend, Amjad Ali Amir Muhammad, was provided in support of the genuineness of the parties’ relationship.  He said he had not met the review applicant. At the hearing the review applicant confirmed that she had not met Mr Muhammad. Given that Mr Muhammad has not met the review applicant, the Tribunal gives his evidence no weight.

37. A letter dated 23 September 2021 from Imam Hisham Obeid was provided in support of the application. The Imam said he believed the parties’ relationship to be genuine however he did not give reasons for his belief. The review applicant confirmed that the Imam has not met the visa applicant and accordingly the Tribunal gives his evidence no weight.

38. Photographs of the parties with other people were provided. The photographs appeared to have been taken on the day of their engagement in Malaysia and on their wedding day in Pakistan with the sponsor’s family members. The remaining photographs, apart from one photograph in which they are with another person, are only of the parties. At the hearing the review applicant told the Tribunal that no photographs were taken when she visited in 2019. She said the visa applicant’s family are of modest means and the wedding was a simple celebration.

39. The Tribunal accepts that the parties resided in different countries at the time of application and time of decision. The Tribunal accepts that the parties have undertaken limited joint social activities consisting mainly of spending time with family and travelling within Pakistan.   Despite the limited evidence, the Tribunal finds that the parties represented themselves to others as being married to each other at the time of application and continue to do so at the time of decision.   

    The nature of the parties’ commitment

40. The Tribunal considered the nature of the persons’ commitment to each other including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.

41. The parties have been married for more than three years however they have spent only six months together since their marriage on 7 July 2018.

42. The review applicant told the Tribunal that she and the visa applicant communicate with each other daily by WhatsApp, Messenger or telephone calls. The visa applicant gave consistent evidence in this regard. Evidence of communication in 2019 was provided.

43. The review applicant told the Tribunal that she and the visa applicant emotionally support each other by communicating with each other every day during the lengthy visa processing and application for review periods. She said when she was in Pakistan in 2018 she was unwell and the visa applicant took her to hospital. She said the visa applicant recently underwent surgery on his leg and she provided him with emotional support during that time. The visa applicant gave consistent evidence in this regard.

44. The visa applicant told the Tribunal that he hopes in the future that he will be able to live with his wife and that they can have a family together. In her oral evidence to the Tribunal the review applicant said they attempted to conceive a baby during her visits to Pakistan.

    Conclusion

45. The Tribunal records that the parties each gave their evidence in a forthright and spontaneous manner and found them to be credible witnesses. Against this the Tribunal notes that limited evidence of the social aspects of the relationship was provided.

46. On balance, having considered carefully all the evidence of the relationship cumulatively and collectively, the Tribunal finds that at the time of application and at the time of decision the parties were and remain in a committed long-term relationship. In making this determination the Tribunal has taken into account that the parties have been married for three years and that they are in daily communication with each other. The Tribunal also places weight on the evidence with respect the emotional support they provide to the each other and the review applicant’s visits to Pakistan in 2019 and 2020.

47. Having regard to all of the evidence, the Tribunal concludes as follows:

    • The parties are married to each other under a marriage that is valid for the purposes of the Act;
    • they are not living separately and apart on a permanent basis;
    • they have a mutual commitment to a shared life together to the exclusion of others; and
    •  that the relationship is genuine and continuing.

48. 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.

49. Therefore, the visa applicant meets cl.309.211(2) and cl.309.221.

50. 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

51. 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

    Christine Kannis
    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).