Rafique (Migration)

[2020] AATA 1827

Rafique (Migration) [2020] AATA 1827 (9 March 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr YASIR RAFIQUE

CASE NUMBER:  1820486

HOME AFFAIRS REFERENCE(S):           BCC2017/1614861

MEMBER:  P. Maishman

DATE:  9 March 2020

PLACE OF DECISION:  Perth

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)(a) of Schedule 2 to the Regulations

.cl.820.221 of Schedule 2 to the Regulations

Statement made on 09 March 2020 at 5:54pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – withdrawal of sponsorship – relationship had ceased – a child from that relationship – parties validly married – genuine married relationship at the time of application – credible and honest witness – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359, 376
Migration Regulations 1994 (Cth), r 1.15, Schedule 2, cls 820.211, 820.221

CASES
Bretag v MILGEA [1991] FCA 582
Srour v MIMIA (2006) 155 FCR 441

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 (the Act).

2. The applicant applied for the visa on 5 May 2017 on the basis of his relationship with his 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 (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)(a) because the delegate was not satisfied that at the time of application the applicant was the spouse or de facto partner of the sponsor.

4. The applicant appeared before the Tribunal on 9 March 2020 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal had before it a copy of the Department’s file that included the visa application, the sponsor form, and evidence provided in respect of the visa application.

7. The applicant provided the Tribunal a copy of the delegate’s decision record. The decision record outlines the applicant’s visa history. The applicant first arrived in Australia in September 2011 as the holder of a student visa and had multiple student visas granted. The applicant was the holder of a student visa and lodged a Partner visa application on 5 May 2017.

8. The departments file contained a certificate under s.376 of the Act notifying the Tribunal that disclosure of material contained in a web form received on 23 October 2018, referred to as TRIM reference number OPD 2019/20299 of file number BCC 2017/1614861, would be contrary to the public interest because it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. The Tribunal wrote to the applicant and invited him to comment on the validity of the certificate and the Tribunal’s discretion to disclose that material. The Tribunal provided the applicant the gist of the information contained in the material being an allegation that he had entered into a fraudulent marriage with his sponsor and was only living with her in order to obtain a visa. The applicant did not respond to that invitation in writing.

9. Prior to the hearing the applicant provided a number of other documents including a covering letter confirming that his relationship with the sponsor had ceased and that he had a child from that relationship, and various documents confirming the birth of their child.

10. The applicant gave oral evidence at the hearing. The Tribunal found the applicant to be candid in his evidence and a credible and honest witness. The Tribunal accepts the

Case Number 1820486  Page 2 of 8

applicant’s oral evidence on that basis. The Tribunal has considered the applicant’s oral evidence together with the documentary evidence to reach the findings below.

1. I have applied the principles espoused in the judgment of Bretag v MILGEA [1991] FCA 582, and I have considered the subsequent history of the relationship, so long as it tends to show the existence or non-existence of the facts relevant to the issue to be determined at the time of application.

2. The issue in the present case is whether, at the time of application, the applicant was the spouse of the sponsor.

   Whether the parties are in a spouse or de facto relationship

3. Clauses 820.211(2)(a) 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 the delegate has recorded is an Australian permanent resident. The Tribunal is satisfied that the sponsor is an Australian permanent resident.

4. ‘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 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?

5. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The departments file contains a marriage certificate signed by the Registrar of Births, Deaths and Marriages in Western Australia showing the applicant married the sponsor in April 2017. There is nothing before the Tribunal’s to suggest the marriage is not valid. 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?

6. The Department’s file contains an email dated 18 December 2017 from the sponsor, withdrawing her sponsorship of the application due to having separated from the applicant on 13 December 2017. The Tribunal adopted the process in s.359AA of the Act to put that information to the applicant and explained the relevance of the information to the review and the consequences of the information being relied on. The Tribunal is satisfied the applicant understood why the information is relevant to the review, and the consequences of that information being relied on. The applicant was invited to comment on, or otherwise respond to, the information and was advised that he may seek additional time to comment on, or respond to, the information. The applicant did not request additional time and commented on the information at the hearing.

Case Number 1820486  Page 3 of 8

1. The Tribunal told the applicant that it was satisfied that the information referred to in the Department’s s.376 was given in confidence and that it was contrary to the public interest for that information to be disclosed in full. The Tribunal finds the Department’s s.376 certificate is valid. The Tribunal invited the applicant to comment on the gist of the information covered by the Department’s certificate.

2. The applicant commented that his marriage was not fraudulent but that his relationship was sometimes difficult. He gave oral evidence that he was Muslim and from Pakistan and his wife was Hindu and from India. He said his wife’s parents were not supportive of their relationship and feels their opposition was a result of the applicant and sponsors cultural differences. The applicant said that he was faithful to his wife from the time their relationship commenced until the time it ceased. He was committed to their relationship, supportive of his wife’s son, and now tried his hardest to continue to be a responsible father to both his stepson and his natural child born on 21 April 2019. The applicant said that his wife regretted and retracted the withdrawal of her sponsorship. The applicant said that he felt that the applicant and sponsors cultural differences were a main cause of the breakdown of his relationship, and while he did not know who said that his relationship was fraudulent he felt their differences may have been the catalyst for that that information being given to the Department.

3. The Tribunal notes the allegation that the applicant’s marriage was fraudulent includes little evidence beyond the names of the parties and the allegation outlined. The Tribunal gives the allegation little weight and accepts the applicant’s statement that he did not consider his marriage fraudulent and was not involved with any other person while he was in a relationship with the sponsor.

4. The Tribunal is unable to locate an email from the sponsor retracting that withdrawal however a file note contained on the Department’s records notes the sponsor revoked the sponsorship withdrawal on 29 December 2017. The Tribunal accepts the applicant’s explanation.

5. The applicant gave oral evidence that his marriage finally finished and he moved out around June 2019. The Tribunal was concerned the applicant had not told either the Department or the Tribunal about the cessation of his relationship until providing additional documents to the Tribunal on 2 March 2020. The applicant responded that he thought his wife had told the authorities and so his relationship status was known.

6. The Tribunal considered the matters in r.1.15A(3).

7. The Tribunal considered the financial aspects of the relationship between the applicant and sponsor at the time of application.

8. The delegate’s decision record notes the applicant and sponsor provided statements for two accounts in joint names. The delegate gave the joint account transaction statements little weight because the joint BankWest account showed few transactions and was overdrawn; while the joint Westpac account showed a minimal balance and no transactions. The delegate noted that various transactions between the sponsor’s account and the applicant’s account showed that during the latter half of 2017 there were regular transfers from the applicant to the sponsor and subsequent payments by the sponsor towards the home loan, utility bills and day-to-day expenses. The delegate was concerned the sponsor’s BankWest home loan account for the period September 2017 to March 2018 showed payments paid by the sponsor for October and November however payments for December January and February 2018 were made by Jagdeep Dhanda.

Case Number 1820486  Page 4 of 8

1. The applicant gave evidence that he was not involved in the purchase of the sponsor’s house. The sponsor purchased the house in her own name, he thinks with the help of her family in India. At the beginning of their relationship he was a student with little income and would have been unable to be included on a mortgage. He contributed to the mortgage for the duration of their relationship and to the best of his recollection thinks he and the sponsor may have had an argument, or he could not afford to contribute, in December, January and February 2018. Jagdeep Dhanda is a family friend of the sponsor’s and thinks he was receiving money from the sponsor’s family in India and depositing the money into the mortgage account.

2. The applicant and sponsor did not, at the time of application, have joint ownership of significant assets or joint liabilities. There is no evidence before the Tribunal that either party had any legal obligations owed to the other. On the evidence, the applicant and the sponsor pooled their financial resources and shared the day-to-day household expenses for at least the second half of 2017.

3. The Tribunal finds the financial aspects of the parties’ relationship, at the time of application, to be consistent with that of a couple in a spousal relationship.

4. The Tribunal considered the nature of the applicant and sponsor’s household.

5. Bank documents provided to the Department and the parties marriage certificate show they both recorded the usual place of residence to be the same address, the home owned by the sponsor in Middle Swan. The delegate notes a letter from the sponsor’s son’s school records the applicant has the guardian of his stepson. The applicant gave oral evidence that he treated his stepson as his own son and continues to do so. His stepson only knows him as a father figure. He was part of his stepson’s life from the time he was three. The Tribunal accepts the applicant’s evidence that he and the sponsor shared the house as a married couple, with his stepson, to the time the relationship ceased. The applicant said that his wife did most of the cooking and cleaning when they were together, however he tried to help when he could. The Tribunal accepts the applicant’s evidence that he was shared the responsibility of getting his stepson to and from school, that he and the sponsor’s living arrangements with those that would be expected of a spousal relationship and that they shared the housework.

6. The Tribunal accepts that the nature of the applicant and sponsors household at the time of application was consistent with that of a couple in a spousal relationship.

7. The Tribunal considered the social aspects of the applicant and sponsors relationship. The applicant said that his family did not mind that the sponsor was Indian or Hindi. The sponsor’s family were not as tolerant of him being Muslim and from Pakistan. Neither of the parties’ families attended their wedding because they have no family in Australia. A number of photographs on the Department’s file show the applicant and sponsor together with the sponsor’s son in family type scenes. The applicant gave evidence that his wedding was only small involving her friend of his and a couple of friends of the sponsor’s. The Tribunal notes the sponsor’s son is included in the wedding ceremony. The Tribunal notes the delegate’s reference to the letter from the sponsor’s son’s primary school dated in August 2017 acknowledging the applicant has the child’s stepson.

8. The Tribunal was concerned that the applicant did not bring any witnesses or provide any written statements, beyond those given little weight by the delegate, to support his application. The applicant said that his friend was unable to attend because he was working.

9. The Tribunal acknowledges the Department’s concern at the lack of evidence supporting the social aspects of the applicant and sponsors relationship. The Tribunal a gives significant

Case Number 1820486  Page 5 of 8

weight however to the letter from the applicant stepson’s school acknowledging the applicant is the guardian of the child. The photographs show the applicant and sponsor and the child in family situations.

1. The Tribunal accepts the evidence supports that the applicant and sponsor represented themselves to other people as being married to each other, their friends and acquaintances consider their relationship to be that of a couple, and that they undertook joint social

   activities at the time of the visa application.

2. The Tribunal considered the nature of the applicant and sponsors commitment to each other.

3. The applicant and sponsor gave the department statutory declarations about their

   relationship in July 2017. The parties also committed to one another by becoming lawfully married. The applicant gave oral evidence, and the Tribunal accepts that evidence, that he and the sponsor were committed to one another because they loved each other. The applicant said that like most people he wanted a close-knit family and was disappointed that his relationship had not endured. The applicant said that while their relationship was often difficult it was genuine and they tried to make it work. The applicant said a result of the applicant and sponsor trying to make their relationship work was the birth of his son in April 2019.

4. The Tribunal is satisfied that nature of the applicant and sponsors commitment to each other, at the time of application, was consistent with that of a couple in a spousal relationship.

5. Having considered the oral and documentary evidence the Tribunal finds that, at the time of application, the applicant and the sponsor had a mutual commitment to a shared life together to the exclusion of others; the relationship was genuine and continuing; and they lived together.

6. 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.

7. Therefore the applicant meets cl.820.211(2)(a).

8. The applicant gave evidence that his de facto relationship with the sponsor had ceased.

9. As the relationship has broken down, the applicant does not continue to meet the requirements of cl.820.211(2) at the time of this decision: cl.820.221(1)(a).

10. Clause 820.221(3)(b)(ii) allows for the grant of the visa where the relationship between the applicant and the sponsoring Partner has ceased, and there is a child in respect of whom the applicant has custody, access, or a residence or contact order made under the Family Law Act 1975. The sponsor must also have these rights, or a child maintenance obligation.

11. A person can have the right to custody as an incident of the statutory imposition of parental responsibility by operation of the Family Law Act in relation to a biological child. Similarly a person can have a formal maintenance obligation to a biological child without a court order by operation of the Child Support (Assessment) Act 1989 rather than the Family Law Act: Srour v MIMIA (2006) 155 FCR 441.

12. The applicant claimed to meet these criteria on the basis that his relationship with the sponsor was genuine married relationship at the time of application, his relationship had ceased, and he shared care of and was responsible for his son. The applicant provided a copy of DNA parentage test reports. The report shows that he is the biological father of a

Case Number 1820486  Page 6 of 8

son born 21 April 2019. The applicant also provided receipts confirming his obligation to pay child support to the sponsor in respect of the child.

1. The Tribunal is satisfied that at the time of this decision the relationship between the applicant and the sponsoring Partner has ceased and that the applicant has custody or joint custody of, or access to the child in respect of whom the sponsoring partner has joint custody. The Tribunal is satisfied that cl 820.221(3) is satisfied.

2. Therefore the applicant meets cl.820.221.

3. 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

4. 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)(a) of Schedule 2 to the Regulations

   . cl.820.221 of Schedule 2 to the Regulations

   P. Maishman
   Member

Case Number 1820486  Page 7 of 8

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).

1. 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.

2. 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).

Case Number 1820486  Page 8 of 8