Rahmani (Migration)

[2022] AATA 3881

Rahmani  (Migration) [2022] AATA 3881 (2 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Salma Rahmani

VISA APPLICANT:  Mr Abdul Wasi Shafaq

REPRESENTATIVE:  Mr Gareth John Lewis

CASE NUMBER:  2212239

DIBP REFERENCE(S):  BCC2019/2738327

MEMBER:Linda Holub

DATE:2 November 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.

Statement made on 02 November 2022 at 4:30pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – commitment to shared life together – validly married in third country – age difference, with sponsor wife being significantly older – very little time spent together – open and straightforward evidence with explanations for small inconsistencies – difficulty in providing evidence with security situation in home country and COVID pandemic – sponsor’s financial support for applicant – further assessment of relationship at permanent visa stage – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulation 1994 (Cth), r 1.15A(3), 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 14 July 2022 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 27 May 2019 on the basis of his relationship with his sponsor, the review applicant

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 applicant and sponsor have commitment to a shared life together.

4. The review applicant appeared before the Tribunal on 19 October 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

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.

   RELEVANT LAW

   Whether the parties are in a spouse or de facto relationship

7. 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.

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

9. ‘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?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The visa applicant provided a copy of the parties’ marriage certificate showing that they undertook their ceremony on 23 Mach 2019. 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).

    BACKGROUND

11. The sponsor was born in March 1972 in Afghanistan and first arrived in Australia 13 July 1988. The sponsor became an Australian citizen by grant 13 July 1995. The sponsor completed her schooling in Sydney and at the time of application was employed at Kennard Self Storage Head Office in Customer Care. She has two children, Ahmed born in 2003, and Harris born in 2007.

12. The visa applicant was born in September 1990 in Kunduz, Afghanistan and is a citizen of Afghanistan. The visa applicant lives in Mazar Sharif, Balkh, in Afghanistan and was employed at the Balkh High Court prior to the Taliban takeover. He ceased employment there in August 2021.

13. The sponsor and visa applicant first met in March 2019 in India and were married in New Delhi 23 March 2019.

    Evidence provided at hearing

    Evidence provided by the sponsor

14. The Tribunal explained to the sponsor that it held concerns in relation to the significant age difference between her and the visa applicant and that it wanted to discuss this with her. The Tribunal noted that she was almost 18 years older than the visa applicant. She responded that it is not important when two people have love and respect for each other. She stated that “age is just a number”. She stated they have a very unique understanding of each other and that she has never experienced that with anyone. She stated it is very important that he loves her children.

15. The Tribunal referred to the fact that given she is now around 50 years of age and asked whether the visa applicant had wanted children and whether it was an issue they had discussed. The sponsor responded they have now waited four years for the visa process to be undertaken and because she hasn’t been able to see the visa applicant due to Covid and the Taliban takeover of Afghanistan, it has impacted on her ability to conceive. She told the Tribunal they had wanted to have children, but their approach is that if God gives them children, then good, but if God doesn’t give them the opportunity, they accept that. The Tribunal put it to her that a few years ago she would have been in her late 40s and the risk of having a child increases with age and asked her if they discussed the risks of having a child at that time. She responded they did not. She stated that when you are in that sort of conversation, you don’t think of the risks because you want to have positive not negative conversations. She stated they are happy with the boys.

16. In relation to whether the age difference between her and the visa applicant might be an issue for her sons, the sponsor stated that the way she brought up her children is that they want her to be happy.

17. The sponsor told the Tribunal that they discussed the age difference when they first spoke when she was introduced, and then on one other occasion.

18. The sponsor told the Tribunal that she lives in a three-bedroom apartment which she is renting. She stated she has lived there for about four years. Her two sons live with her.

19. In relation to their future plans the sponsor told the Tribunal they had had talked about the visa applicant learning English and that in the beginning he will take any job because he does not have experience, but he wants to study at night at TAFE to get a certificate. She stated that he would like to continue to work as a solicitor in Australia. She stated they both want to work and save money for a house and support the children. The sponsor added that as a single mother, she had to work full-time and care for her children and was not able to have holidays, so she would like to travel with the visa applicant.

20. The sponsor told the Tribunal that in total she and the visa applicant had spent nine days together but that they speak about four or five times per day, and they also send each other messages. She stated they mostly used Facebook Messenger because it works better, and they make audio and video calls. She stated she works from home and works rosters. She stated she talks to the visa applicant in the evening (Sydney time), and they message each other throughout the day.

21. The Tribunal asked the review applicant to outline how she and the visa applicant have provided each other with companionship and emotional support. The Tribunal acknowledged that this is more difficult to do given they reside in different countries. The Tribunal also explained that it would like her to provide specific examples. The sponsor stated that they have had hard times together over the past four years and that the visa applicant has supported her amazingly. She referred to the time he lost his job and when the Taliban took over the country. She stated the Taliban went from house to house searching for weapons and for people who had previously worked for the government. She stated that on 26 August 2021 the visa applicant was beaten and was bleeding and had a lot of marks on his body. She supported him and wanted to see if she could help him. She stated she kept reassuring him and advised him not to go anywhere. She stated that in addition to supporting him emotionally, she has supported the visa applicant financially since that time.

22. The sponsor stated that she works full time and also cares for her children which is very draining. She stated that the visa applicant always encourages her to not give up. She also referred to recently having a back problem and how the visa applicant expressed his keenness to help her.

23. In relation to her social activities, the sponsor told the Tribunal that she is close to her sisters and that her children are close in age to her sister’s children. She stated they go out together to restaurants and visit each other. She stated that she also socialises with some of her colleagues.

24. In relation to her employment, the sponsor told the Tribunal that she previously worked for Kennards but now works for Service NSW. she stated she works full-time at home and that she has been employed there for about nine months. She switched to Service NSW because there were more opportunities available for her.

25. The sponsor told the Tribunal that she has no assets, and she and the visa applicant have no joint assets. She also told the Tribunal she previously had a two door Honda Prelude but when the visa applicant did his medical examination she saw it as a good sign, so she bought a bigger car – an MG.

26. The Tribunal asked the sponsor who the visa applicant lives with. She responded that he lives with his brothers. When asked how many, she responded two brothers and sisters and that they live in the family home

    Evidence provided by the visa applicant

27. The Tribunal explained to the visa applicant that one of the issues it wishes to discuss is the significant age gap between him and the sponsor and asked him about the conversations they had about this. He responded that in the course of getting introduced, they talked, and he didn’t think about age. He stated that when he saw the sponsor’s picture he fell in love, and they got used to each other. The Tribunal explained to him that that it was concerned that he fell in love with a picture of the sponsor and questioned him about this. He confirmed he fell in love with a picture. He stated he saw the picture and had feelings and had conversations. He stated they trust each other, and that age is only a number.

28. The Tribunal explained to the visa applicant that one of the issues that can arise is the impact on having children and asked him to talk about the conversations they had about that issue. He responded they have children and when he first saw them, he realised they have never felt the love of a father but realised that he could fill that gap. They have two children now and they don’t need to have more. They have to support them.

29. The Tribunal asked him to direct his response to tell the Tribunal more specifically about the conversations they had about having children. He again responded they have two children. He stated they talked about them. He stated they haven’t talked more than that and they won’t talk more than that.

30. The Tribunal asked the visa applicant if there is anything else he wants to say about the age difference between him and the sponsor. He responded that age is a number and is not an issue for him. He told the Tribunal that what is important is that they like each other. He stated they haven’t thought about other things that much. He stated the sponsor is a couple of years older than him, but he is not young as well and that he is also an adult. He stated the important thing is that they love each other, and they have respect for each other. The Tribunal noted that the sponsor is actually 18 years older than the visa applicant which is more than a couple of years as he put it.

31. The visa applicant stated that he and the sponsor have discussed their future plans. He stated that firstly when he comes, he will improve his language and also to get work because he and his sponsor want to buy a house. He stated that he has worked as a judge for more than nine years in Afghanistan. He stated that he wants to study, and he wants his qualification to be recognised and to see if he can serve as a judge in Australia and serve the people of Australia. The visa applicant stated that the other plan is that the sponsor has always worked and looked after the children so she has not seen many different places of Australia so when he comes, they will work together and travel as well.

32. The visa applicant was asked how often he and the sponsor speak with each other. He stated that they generally use messenger and they made both audio and video calls to each other.

33. The Tribunal asked the visa applicant to provide examples of how he had provided the sponsor with emotional support and also about how she has provided him with emotional support. He responded they provide each other with support all the time. He referred to the occasion when the government of Afghanistan collapsed, and the Taliban took over the country. He stated he lost his job, and he was worrying so the sponsor provided him with support. He stated she would call him and tell him that he should not worry and reassured him that it was not only him, but all the people of Afghanistan were experiencing this. He also referred to the time when the visa application was rejected on the 15 July 2022. He stated it was very painful and very hard for him at that time. He stated the sponsor supported him and showed that she loved him and told him it is okay and that they need to be patient and that they should provide support to each other.

34. The visa applicant also stated that when the visa application was rejected, he provided support to the sponsor as well. He stated when she first called him, she was quite frustrated, and when they talked, he told her that she shouldn't worry. He tried to show that it was that maybe it is God’s will. He told her not to stress because it's going to cause her some illness. He stated that although he was unhappy himself, he tried to provide support to her at that time.

35. The Tribunal asked the visa applicant to provide an example that is unrelated to the visa application. He stated that whenever the sponsor gets sick, or she feels lonely she rings him. He stated that she was sick a couple of days ago and when she was sick, he can’t actually help her, but he tells her to be mindful of herself. He stated that a few weeks ago she had lower back pain.

36. The visa applicant told the Tribunal that the sponsor currently works from home, and she works as an operator. He stated when she finishes work, she picks up her children from school and when she comes back, she cooks the meal and other things that a woman does at home. He stated sometimes she goes out with her sister, and she goes to the park, or to the city or sometimes they go out in the evening to have dinner but mainly she is at home.

37. The visa applicant stated that the sponsor replaced her previous car because the old car was small and that at that time, they were hopeful that he would get the visa and therefore that car will have to accommodate all of them

38. The visa applicant stated that the sponsor has worked with her current employer for about one and a half to two years. In relation to why she changed jobs he stated that she moved because the contract with the previous job finished.

    Concerns put to the sponsor

39. The Tribunal explained to the sponsor that despite both her and the visa applicant both saying that ‘age is just a number’, from its perspective there are some significant issues that can impact on relationships. Given the very significant age difference between them it wanted to further explore its concerns with her.

40. The Tribunal noted that one of the aspects of a big age range is the different levels of emotional maturity as well as differences in life priorities and as people get older their bodies change and once people are in their 50s there are different health issues that might arise. The Tribunal explained the fact people say age it's just a number without having explored some of these issues raises concerns. Furthermore, the Tribunal referred to the visa applicant’s evidence that he fell in love with a picture raises concerns. The sponsor responded that the reason that he said this was because that's how they were introduced to each other. He first saw a photo of her, and he became interested. His sister and her sister are friends, so they always talk amongst themselves in regard to the families and he heard about her through those family connections. She stated that the more they talked to each other the more we understood each other. She stated that she liked that he is a very open-minded person and seemed to be very understanding about what she went through in her life. She stated that he was so compassionate and responded to her in a very caring and loving way. She stated that she knows that he cares about her and her boys and he knows how much she cares about him. The sponsor stated they have been supporting each other throughout this difficult time in Afghanistan. She stated that this shows a lot about their commitment to each other.

41. The sponsor told the Tribunal that she understands that from an outside perspective it’s very hard to see what's going on in a relationship and whether it's genuine or not, but she and the visa applicant both believe it is genuine. She stated that in their culture once they obtain the Islamic contract it means something and it's not that simple to break it off. She stated that it's a very significant commitment and additionally what they went through in the past four years takes a real relationship.

42. The Tribunal also put to the sponsor its concerns regarding the inconsistent answers provided by the parties in relation to their discussions about their age differences. The sponsor responded that they did not really have much of a conversation. She stated that she brought up the topic with him in 2018. She stated he might not exactly remember the conversation. 

43. The Tribunal also put the inconsistent responses in relation to her employment to the sponsor. The Tribunal referred to the fact that when she described why she moved to the job with Service NSW, she talked about the new opportunities it would provide and that it's a more secure role in the in the government, but the visa applicant referred to the move occurring because your contract had finished. In addition, the evidence regarding how long she had been in her new role was different. The sponsor responded that she took a break of a few months and then started with Service New South Wales. In between she had a contract job in a call centre for three months and then she moved to the actual centre to work for another three months and then after that contract ended, she started with Transport NSW.

    Oral submissions made by the migration representative

1. The migration representative stated that the parties can provide very little concrete evidence against the four main aspects given their distance and the nature of the relationship, and the situation in Afghanistan plus Covid in the middle. He stated that everyone can see they have only spent 10 days together, but they speak every day and have provided the volume of 7,000 pages of their communication. He submitted that he does not think it's necessary to put as much weight on some of the points and some of the small inconsistencies and that he would also like to point out about age being different things to different people and obviously having children is more significant for some people. He submitted that possibly it was more in the sponsor’s mind to talk to the visa applicant about the age difference and for whatever reason the visa applicant decided that he's happy and he hasn't really thought about their ages. The representative stated that the visa applicant knew that the sponsor bought a white car which is bigger than her previous car and he gave a reasonable answer about when she bought it and that it’s an MG.

2. The representative stated that he believes there is sufficient evidence in his submission to show that they are in a genuine relationship, and they continued basically throughout the period since they first met, even though there is not a lot to be gained by either party although he then acknowledged the visa applicant gets to come to Australia. He referred to their daily communication.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Are the other requirements for a spouse relationship met?

   Nature of persons' commitment to each other

3. The evidence put forward is that the sponsor and visa applicant were first introduced in April 2018 through family. The visa applicant expressed interest in the sponsor, and they began speaking over the phone since April 2018 once or twice a day.

4. After many months of communication, they felt it was time to move forward in their relationship. In her statement the sponsor stated that in Afghani culture the men do not propose to the women directly but through the family. The visa applicant asked his sister to talk to the sponsor’s sister about proposing, and after that he asked for her hand in marriage via video chat.

5. The parties decided to meet and introduce the visa applicant to the sponsor’s two children. The sponsor and her children travelled to India on 20 March 2019 to meet the visa applicant.

6. On 23 March 2019 they were married in a small private ceremony while in India. They spent time travelling together, visiting India Gate 24 March 2019 and the Taj Mahal 26 March 2019. The sponsor returned to Australia on 29 March 2019, and the visa applicant returned to Afghanistan 30 March 2019.

7. The visa applicant provided the Department with a copy of the parties Government of India – marriage certificate issued on 25 March 2019, their Nikah certificate dated 23 March 2019 and a large volume of Facebook messages ranging from September 2019 to March 2022 including messages and correspondence between the visa applicant and his sponsor regarding the claimed Taliban attack on the visa applicant.

8. The Tribunal received:

   §photo submissions of the wedding of the parties and their holiday in India 2019, including with the sponsor’s children.

   §extensive call logs between the parties and copies of a number or emails between them as well as screenshots from their Messenger Gallery.

9. The Tribunal had a number of concerns regarding the age difference between the parties and the fact that they have only spent a few days together. However, the Tribunal accepts that the parties married in March 2019 and have maintained close contact with each other through messages and calls since that time. The Tribunal acknowledges that in Afghani culture, couples do not necessarily have an opportunity to spend much time together prior to marrying. Furthermore, in the case of this couple, the Covid-19 pandemic as well as the takeover of Afghanisation made it extremely difficult for them to spend more time together. The Tribunal accepts the parties provide each other with companionship and emotional support and notes their claims that they see the relationship as long term and that they provided consistent evidence regarding their future plans. The Tribunal is satisfied as to this aspect of the parties’ relationship.

   Financial aspects of the relationship

10. The visa applicant provided the Department and the Tribunal with evidence of money transfers sent from the sponsor to the visa applicant. In the sponsor’s Statutory Declaration of 10 October 2022, she stated that she and the visa applicant covered the cost of their own airfares but during their time in India, the visa applicant paid for their accommodation, and he covered the cost of all of their expenses including that of their Nikah and that it was only after the visa applicant lost his job that she commends supporting him financially.

11. Overall, the evidence regarding the financial aspects of the relationship is very thin. The Tribunal notes that the parties have no joint ownership of any assets or liabilities. The Tribunal does not attribute any negative assumptions about this given the circumstances of the parties and in particular that the visa applicant resides in Afghanistan. The Tribunal has given some weight to the fact that the sponsor supports the visa applicant since he was unable to work following the Taliban takeover of the country and is prepared to accept that their current arrangements in respect of the financial aspects of the relationship are indicative of a genuine and committed relationship – given its circumatances.

    Nature of the household

12. In support of the application the documentation provided includes a copy of a furniture order made by the sponsor and evidence of the purchase of a motor vehicle by the sponsor as well as a receipt in the name of the visa applicant from the White Palace Guest House and a copy of the travel itinerary of the sponsor and her children’s travel to India in March 2019. Again, the documentary evidence provided by the parties was not substantive. However, the Tribunal has taken account of the fact that the parties gave consistent evidence regarding the circumstances of both the visa applicant and the sponsor, their household arrangements, and other relevant details. While this was quite limited in nature the Tribunal has taken account of the factors previously referred to including that because of the Covid-19 pandemic and the Taliban takeover of Afghanistan that the parties have had a limited opportunity to establish joint living arrangements and share housework. The Tribunal heard consistent oral evidence regarding the relationship between the visa applicant and the sponsor’s children. The Tribunal is prepared to accept that the evidence available to each supports a positive finding in relation to this aspect of the parties’ relationship.

    Social aspects of the relationship

13. The Department was provided with statements made by the visa applicant and the sponsor as well as Statutory Declaration (Form 888s) made by the sponsor’s sister, brother-in-law Ibrahim Sharifi as well as a letter of support from Shekiba Askarzada. The Tribunal received supporting statements from:

    
    
    

    §the visa applicant’s brothers, Fayaz Shafaq, Abdul Mobin Shafaqand his brother-in-law Mohammad Karim and his close friend, Zealagi Wafa all of which are dated 28 September 2022. Both of these statements describe some aspects of how the parties met and attest to the good character of the visa applicant and to the relationship, but do not provide any meaningful insights. Similarly, the statement from the visa applicant’s sister also dated 28 September 2022 does not provide any insight into the relationship, it outlines how the parties met and attests to the relationship.

    §in a statement provided by the sponsor’s son, Ahmed Rahmani, 4 October 2022, he referred to the visa applicant as his father. He stated that he did not have a father figure as he was growing up which made him feel left out. He claims that his life was instantly better when the sponsor introduced him to the visa applicant. He also referred to seeing his mother happy because she had met the visa applicant and had developed a relationship with him. He referred to him and his brother spending time with the visa applicant, and they had an enjoyable time in India as a family. He wrote that the visa applicant always checks on him by texting him, calling him and they play video games together.

    §in a statement provided by the sponsor’s son, Harris Rahmani dated 4 October 2022, he wrote a letter supporting the sponsor's relationship with the visa applicant. He states that the first time he met the visa applicant was when he travelled to India with his mother and brother. He stated that when he and the visa applicant speak by phone, he helps the visa applicant to learn English and the visa applicant helps him with his homework. He refers to the visa applicant as providing a role model for him which will be helpful when he finishes school and pursues a career pathway.

    §the statements from the sponsor’s sister and her brother-in-law dated 4 October 2022 outline the manner in which the parties met, their views of the visa applicant and attests to the genuineness of the relationship, but do not provide significant insights into the relationship.

14. The sponsor provided the Tribunal with a Statutory Declaration dated 10 October 2022. In relation to her relationship with the visa applicant she explained the manner in which they met and how she feels about the visa applicant and how the relationship progressed to the point of a proposal. She also outlined her introduction of him to her sons and his relationship with them. The sponsor explained that she first met the visa applicant on 20 March 2019 in India and that they married on 23 March 2019. The sponsor also explained her past relationship history and the fact that she has been a single mother for some time, she talked about the difficulties during Covid and the Taliban takeover of Afghanistan and outlined the impact of that on the visa applicant.

15. The visa applicant’s statement of 28 September 2022 is essentially similar to that of the sponsor’s referred to in the previous paragraph, and in addition he refers to the emotional feeling he had when he was introduced to the sponsor's son and stated that they no longer feel the lack of a father.

16. The Tribunal accepts that the parties represent themselves to other people as being married to each other; and that their relationship is supported by family members and that they undertook some joint social activities during the time they spent together. The Tribunal accepts that in the circumstances of the relationship, the evidence supports a finding that this aspect of the relationship is met by the parties.

Overall assessment

1. The Tribunal has taken account of the circumstances of the relationship and the fact that the visa applicant resides in Afghanistan. The Tribunal has also put significant weight on the fact that the Covid-19 pandemic disrupted normal travel opportunities and further restricted the parties’ ability to spend time together as did the takeover of Afghanistan by the Taliban in August 2021. The Tribunal has also considered cultural aspects of the relationship and that in some cultures, including in Afghani culture it is not unusual for two people to spend very little time together prior to marrying.

2. While the Tribunal still holds some concerns regarding the significant age difference between the parties and the fact that very little documentary evidence was available regarding the four aspects of the relationship, the Tribunal observes that the partner migration stream involves a two-stage process before a permanent visa is granted and there will be a further assessment of the relationship at the permanent visa stage. Should there be any concerns or adverse evidence relevant to the genuineness of the relationship it can be considered at that time.

3. The Tribunal found that the sponsor gave evidence in an open and straightforward manner. Despite the delegate’s concerns at the time of the decision, the Tribunal is of the view that it is extremely difficult for the parties to provide extensive further information. It notes that the parties provided consistent oral evidence and small inconsistencies were explained. The Tribunal is satisfied that the parties are committed to their marriage.

4. On the basis of the above the Tribunal finds that at the time of application and at the time of decision, the parties were not living separately and apart on a permanent basis and that they saw their future as a long-term one. The Tribunal is also satisfied that at time of application and time of decision that the parties continue to have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that the relationship is genuine and continuing.

5. 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].

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

7. 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

8. 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.

   Linda Holub
   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).