RAASHED (Migration)

[2022] AATA 3853

RAASHED (Migration) [2022] AATA 3853 (24 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dr RASHID RAASHED

VISA APPLICANT:  Mrs SULTANA YASMIN RAASHED

REPRESENTATIVE:  Mr Gagan Butalia (MARN: 1791504)

CASE NUMBER:  1832965

DIBP REFERENCE(S):  BCC2016/2804755

MEMBER:Michael Cooke

DATE:24 October 2022

PLACE OF DECISION:  Sydney

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 24 October 2022 at 5:51pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – exclusive, genuine and continuing relationship – financial, household and social aspects of relationship and nature of commitment – relationship started while sponsor married – spousal separation but living together to care for disabled children – religious and social requirements if divorced – legal separation of assets with wife and joint assets with applicant – length and registration of relationship – three children Australian citizens – sponsor,  applicant and their children now living together while sponsor continues to care for children of marriage – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 65
Migration Regulations 1994 (Cth), rr 1.09A(2), (3), 2.03A, Schedule 2, cls 309.211(2), 309.221

CASE
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 October 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 24 August 2016 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.309.211becasue the delegate was not convinced that the applicant’s sponsor and his wife, not being the applicant are in a continuing spouse relationship.

4. The review applicant appeared before the Tribunal on 24 March 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant.

5. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. On 26 September the applicant submitted a (NSW approved) Relationship Certificate as requested.

7. On 15 October 2022 (following Tribunal request post hearing) the applicant’s representative submitted additional evidence pursuant to reg.1.09A.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant and her sponsor are in an exclusive de facto partner relationship.

   SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

   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 de facto partner of the review applicant who is an Australian citizen.

    Are the parties in a de facto relationship?

11. ‘De facto partner’ is defined in s.5CB of the Act, which provides that 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).

12. In forming an opinion 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 and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.09A(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.

    Findings and reasons about each matter in r.1.09A(3)(a), (b), (c) and (d), and any other circumstances of the relationship under r.1.09A(2):

    ·Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

13. The parties have informed that the jointly own the property ‘Leadership High School’ in Bangladesh which is worth over AUD 14 million indicating joint ownership of assets, joint liabilities and legal obligations owed to the other party. The applicant is the main nominated contact dealing with the banks as well as other third parties representing the sponsor in any business dealings indicating pooling of financial resources The parties have a joint account in Bangladesh. They have provided (as well) evidence of money transfer receipts. This indicates sharing of day-to-day household expenses.

14. The Tribunal is satisfied that the financial aspects of the relationship are de facto partner- like in nature.

    ·Nature of the household – including any joint responsibility for care and support of children; parties’ living arrangements; and any sharing of housework.

15. The sponsor and his former wife previously lived together in the same house - which they jointly purchased twenty years ago. The sponsor argues that their relationship was not a marriage-like relationship but that they “lived under the same roof” for family reasons. He indicated that he had resiled from divorcing his estranged wife because of his (disabled) children. One has a developmental disability issue and two have autism. His representative has explained that:

    Although the previous relationship had ended in a spousal separation; but the Sponsor continued to live under one roof to provide support in the upbringing of the triplets. The Sponsor also claims that the older three children from the previous relationship have all moved out of the house. This left the mother of the children with a very hard task of looking after the three special needs children, where one of them gets quite aggressive at times, if he doesn’t get to see both his father and mother for a prolonged period. This also meant that the children cannot be cared for appropriately just by the mother. This was one of the reasons behind the sponsor continuing to stay in the same house.

16. He felt (until recently) that to disrupt their lives through full residential separation  (‘living separately and apart on a permanent basis’) would create unnecessary hardship for them. He had advised that (as a devout Muslim) - were he to divorce his estranged wife – then such a deed would invoke added religious burdens on his estranged wife when together indoors. For instance, she (as a divorced Muslim woman) would be required to dress Islamically (hijab or burqa) inside the house - if he were on the premises at the time. He explained in oral evidence that he felt this could unduly alarm the three disabled children from his first marriage - were they to be confronted by their mother disporting a strange new dress code. His representative has explained further that:

    Additionally, being practicing Muslims, Dr Raashed (the sponsor) and his previous spouse, Shameem Raashed would not have been able to live under one roof, if they were to divorce one another, which would have affected the care provided to the special needs children. As per Muslim belief system, once divorced, Shameem and Dr Raashed would have had to treat one another as complete strangers and would not be allowed to live with a stranger in the same house. Also, if Dr Raashed visited the children at home, Shameem would have had to cover herself from head to toe according to their tradition. This would have included a Hijab (head covering) or a Burqa (full body covering), which would once again disturb the children who are not used to seeing their mother wearing such items of clothing inside their home. We are attaching the translated extract of verses from Qur’an with regards to Hijab as evidence to support the above statement.

    Since the arrival of his de facto spouse, Sultana Yasmin Raashed and the three children, Dr Raashed has moved out of the house in the month of November 2021 into a rented accommodation in Punchbowl, NSW. He continues to spend the day with his special needs children, as he drives them to the school and assists them with other activities including trying to teach one of them to drive. We are providing the Tribunal with the Lease agreement and rental payment receipt as evidence of the claim that our client has moved out of the property.

    The former (marital) property at Sefton had been transferred by the Sponsor to their previous spouse in September 2012. This is the same property that the Delegate doubted had been transferred but did not request a Title Deed for, even at the interview. We are providing an extract of NSW Land Registry Services dated 6th of December 2018 which notes Shameem Raashed as the sole title holder. This transfer of title was initiated with the form prepared for NSW Office of State Revenue to transfer the title due to breakdown of marriage (provided to the Department and mentioned in the Decision Record). We assume that this would satisfy the Tribunal that the statement that our client made before a justice of the peace (JP) outlining the separation of assets, was in fact a true statement.

    The sponsor further advises that he has a property on lease in Australia where he is currently living with the children. Since the applicant does not hold a visa to Australia, she is living in the ancestral home of the sponsor in Bangladesh. The applicant travelled to Australia earlier this year to drop off the children and lived at the same address with the sponsor while here in Australia. Evidence in the form of a joint lease agreement has been provided by the sponsor to confirm this.

17. The Tribunal is satisfied that the nature of the parties’ household is de facto relationship-like.

    ·Social aspects of the relationship – including whether parties represent themselves to other people as being in a de facto relationship with 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.

18. The parties have three children together and when together in Bangladesh have presented themselves to family and other people as married - Islamically. When in Australia they have presented themselves as being in a de facto relationship with each other and have evidenced a (NSW-issued) Relationship Certificate to prove this claim. They have evidenced undertaking joint social activities together in Bangladesh previously and the Tribunal presumes they do so in Australia whilst anticipating the outcome of this review.

19. The Tribunal is satisfied that the nature of the social aspects of the relationship is of a de facto relationship type.

    ·Nature of persons’ commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

20. The applicant claims that he ‘committed to a de facto relationship to the applicant in the year 2004’. The sponsor indicated to the delegate that he formally separated from his wife on 12 September 2012 and that he had already commenced a de-facto relationship with the applicant in February 2004. The sponsor (it appears) maintained a relationship that was not mutually ‘exclusive’ for a period in excess of eight years. During this time, he maintained ongoing residence with his estranged wife whilst fathering three ex-nuptial children with the visa applicant. In interview with the delegate the sponsor had informed that during this period he “pondered” separating from his wife, but ultimately did not. From 2012 the sponsor and his former wife ceased their spousal relationship and legally split their assets but continued to co-habit, residentially, until November 2021 due to the needs of his disabled children.

21. In an interview with the delegate:

    the sponsor was asked on several occasions to describe the circumstances in which the parties met, and how their relationship developed. The sponsor’s description of the events was very basic - opined the delegate. He concluded that the sponsor was not able to provide much more detail than explaining that the applicant was his first cousin, and that a ceremony took place in which he declared the relationship before the applicant’s father - his uncle.

22. However simplistically the parties began their acknowledged relationship, the fact remains that the sponsor has fathered three children from this de facto relationship with the primary visa applicant and lives with her. The children are all Australian citizens - though born overseas. The sponsor also has 6 children from his previous relationship, which includes a set of triplets born in 2001, two of who were born with Autism and the other with development delay issues.

23. The Tribunal is satisfied that the parties see their (already lengthy) de facto relationship as long-term and that they support each and provide each other with companionship and emotional support.

24. The Tribunal is satisfied that the nature of persons’ commitment to each other is a of de facto relationship type.

    ·Whether the parties are related by family.

25. The Tribunal is satisfied that, while the parties are first cousins, they are not however related by family for the purposes of meeting s 5CB(2)(d).

26. The Tribunal has considered these matters and makes the following findings against s.5CB(2)(a)-(c). The parties have a mutual commitment to shared life to the exclusion of others; a genuine and continuing relationship; and they live together or not separately and apart on a permanent basis, and pursuant to s.5CB(2)(d) the parties are not related by family.

27. 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 at the time of this decision.

    Conclusion on spouse/de facto criteria

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

    Are the additional criteria for a de facto relationship met?

29. 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.

30. 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.

31. The applicant has provided evidence that the relationship is registered under NSW law 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.

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

33. 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

34. 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

    Michael Cooke
    Senior 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).