Qurbani (Migration)

[2021] AATA 668

Qurbani (Migration) [2021] AATA 668 (4 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abdul Wahid Qurbani

VISA APPLICANT:  Mrs Kanwal Zafar

CASE NUMBER:  1807033

DIBP REFERENCE(S):  BCC2017/1012848

MEMBER:Donna Petrovich

DATE:4 February 2021

PLACE OF DECISION:  Melbourne

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.309.211Schedule 2 to the Regulations

·r.2.03A

Statement made on 04 February 2021 at 12:08pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and ongoing relationship – money transfers – arranged marriage between close family members – regular communication – decision under review remitted     

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.212, 309.221; rr 1.03, 1.15, 2.03

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 15 January 2018 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 14 March 2017 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 did not believe that the applicant met the legal requirements specified in the Act as they did not provide sufficient evidence of an ongoing spousal relationship.

4. The review applicant appeared before the Tribunal on 13 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the review applicant’s brother Mussa Qurbani.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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 applicants are in an ongoing spousal relationship.

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

10. ‘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 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. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

11. The visa applicant is a 25 year old woman from Pakistan and her sponsor, the review applicant, is a 28 year old Australian citizen. They met through an arranged marriage in Pakistan.  A Nikah was arranged between the families 9 April 2015, the second ceremony, the Rukhsathi, occurred on 5 May 2018.  The Tribunal heard that the couple spent time together after the Nikah  talking and getting to know each other whilst in the company of family and friends who Chaperoned them.

12. On his second visit to Pakistan the Sponsor remained with his wife until June 2015, a period of 68 days. The Tribunal heard that during this time they lived together as husband and wife and took the step of formalising their marriage with a formal ceremony of Rankest and, although not required by tradition, it is accepted that this formalises the Nikah. It was submitted to the Tribunal that the review applicant last departed Pakistan on the 16 June 2015, and since that time the couple have remained in contact via social media and telephone. The Tribunal accepts that there are significant cultural differences and in this case the couple appear to be married in accordance with the traditions of their culture.  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 spouse relationship met?

    Financial aspects of the relationship

13. The review applicant told the Tribunal that he sends the visa applicant financial assistance of approximately $300 per month, the visa applicant lives with her own family which consists of her mother, father, her sister (aged 23 years), her brother (aged 16 years), another younger brother (age unspecified) and her youngest sister (aged six years). The visa applicant is a student and does not work outside the home of her family. The review applicant has a house in his name and pays for his own bills and expenses. The Tribunal heard that the couple lived together in the review applicant’s family home for three months and during this time he paid for the bills and living expenses; however, generally, the couple live separately and in different countries and do not share any financial commitments together.  The Tribunal in considering these circumstances finds that the couple does not share day to day household expenses, but the review applicant may share some financial responsibility in the respect that he provides monies to the visa applicant for expenses, as one would expect. With regard to separate living arrangements the Tribunal places some small weight in the applicant’s favour.

    Nature of the household

14. The Tribunal heard that the review applicant lives and works in Australia and that the applicant lives with her family in Pakistan.  The couple were introduced as part of an arranged marriage and betrothed in a Nikah where they were introduced on the 9 April 2015, and his family came to her family home, afterwards they were able to see each other during the day to talk to each other, if accompanied by chaperones.  It was explained to the Tribunal that it is important that the couple are able to get to know each other during this initial period, and it is customary to protect the virginity of the bride and ensure that the match is enduring.  The applicant explained, “When I came a second time we understood each other much better, strengthened, and the relationship improved”. The Tribunal heard that this second ceremony (the Rukhsathi) occurred on 5 May 2018 and that the couple spent three months together and shared household chores and during this time had an intimate relationship, living together as man and wife.  The Tribunal in considering this places some small weight in favour of the applicant.

    Social aspects of the relationship

15. The Tribunal heard that initially they spent time together after the Nikah and were accompanied by family members including the visa applicant’s sister and friends.  They would go hiking in the nearby hills and take a picnic; they have shared stories with their friends and attended weddings and the Festival of Eid together.  The Tribunal received submissions after the hearing including photos of the couple. It was explained that earlier photos were not available and not permitted as part of the Nikah and tradition and culture prevented photos from being taken or the couple sitting next to each other before a certain time had elapsed. The applicants provided a family tree which showed the relationship of the family to each other and the closeness between the couple’s families. The Tribunal in considering this places some weight in favour of the applicants on the basis that this is an arranged marriage between close family members who are known to each other, and the interactions which have taken place between family and friends during the Nikah is evidence of social recognition of the union of the couple.  

    Nature of the parties’ commitment to each other     

16. The Tribunal heard that this was an arranged marriage which took place through a Nikah where family members approve a union between a couple.  The initial Nikah ceremony took place on 9 April 2015 where the couple were introduced, and they spent time together in a chaperoned and controlled circumstance.

17. The Tribunal heard that the second time the review applicant came to Pakistan the Rukhsathi marriage ceremony occurred, and the couple consummated their marriage and they lived together as husband and wife from the 5 May 2018, for a period of three months.

18. The couple have maintained their relationship since meeting in 2015 at the commencement of their Nikah.  They have maintained regular contact via telephone and social media as evidenced by material provided to the Tribunal by the way of screenshots and phone records.  They have complied with the traditions of their religion and abided by cultural requirements, they have been unable to live together due to living in separate countries, but have maintained a commitment to each other for over ten years and presented to the Tribunal a mutual commitment to each other. They spoke of the difficulties because of culture and how they wished to commence their married life in Australia and have a family.

19. The Tribunal has considered the above and accepts the significant cultural differences in this marriage. The Tribunal accepts the evidence provided by the review and visa applicants as compelling and honest in relation to the circumstance they are in. In this case, they have endured separation and the Tribunal is prepared to accept that the relationship is long-term because although they have not lived together except for a brief time, this is as a result of circumstances beyond their control, including cultural constraints. It is clear that they communicate regularly and have long term plans for their future lives together.  In this case the Tribunal places weight in favour of the applicants.

    Any other circumstances    

    Whether the parties are related by family

20. The applicants presented written evidence after the hearing of the connections between the families, in the form of a family tree, in an effort to explain how the Nikah occurred. The family tree diagram indicates that the review applicant’s sister married the visa applicant’s maternal uncle, meaning that the visa applicant’s uncle is also the review applicant’s brother-in-law.

21. 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.

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

23. 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

24. 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.309.212 of Schedule 2 to the Regulations]

    ·r.2.03A

    Donna Petrovich
    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).