RESHAM (Migration)

[2018] AATA 4884

RESHAM (Migration) [2018] AATA 4884 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Farzana RESHAM

VISA APPLICANT:  Mr Muhammad Ali KHAN

CASE NUMBER:  1709810

DIBP REFERENCE(S):  BCC2015/1866048

MEMBER:Russell Matheson

DATE:23 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 23 October 2018 at 8:27am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse Provisional) – whether there is a valid marriage – marriage not recognised by government of the country – invalid marriage – social recognition of parties – committed relationship – unable to satisfy de facto relationship requirements – no co-habitation – compassionate and compelling circumstances – health issues – decision under review affirmed

LEGISLATION
Marriage Act 1961 (Cth) s 12
Migration Act 1958 (Cth) ss 5CB, 65, 359AA
Migration Regulations 1994 (Cth) rr 1.09A. 2.03A Schedule 2 cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206
Paduano v MIMIA [2005] FCA 211

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 1 March 2017 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 (the applicant) is a 27 year old male national of Pakistan. He applied for the visa on 29 May 2015 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by 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 applicant did not satisfy cl.309.211 because there was limited evidence to show that the parties were in a genuine and continuing spousal relationship. The sponsor seeks review of the delegate’s decision.

4. The sponsor (review applicant) appeared before the Tribunal on 11 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor’s mother and brother.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   BACKGROUND

6. The primary applicant lodged a valid application for a Partner (Provisional) (Class UF) (Subclass 309) and Partner (Migrant) (Class BC) (Subclass 100) visa on 29 May 2015 on the basis of his marriage that took place in Pakistan on 23 April 2015.

7. The applicant, Muhammad Ali KHAN, is a 27 year-old male Pakistani national who has declared no previous relationships. The sponsor, Farzana RESHAM, is a 21 year old Pakistani national who is now an Australian permanent resident. She has declared no previous relationships. They are cousins from the maternal side of the family.

8. The applicant and sponsor have submitted their marriage registration certificate issued from Nazarat Islah-O-Irshad Rishta Nata. Both the applicant and sponsor are Ahmadiyya. The Admadiyya are not recognised as Muslim in Pakistan and therefore their marriage cannot be registered under the Muslim Family Law Ordinance. Their marriage is not recognised under local law and therefore the parties are not married for the purposes of the Act.

9. The Tribunal is satisfied that a nikah (marriage) took place as described by the parties and that the marriage contract was signed.

10. The Tribunal acknowledges that the marriage took place on 23 April 2015 and the visa application was lodged on 29 May 2015.

    Whether the parties are in a spouse or de facto relationship

11. 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 applicant claims to be the spouse of the review applicant who is an Australian permanent resident.

12. ‘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: s.5F(2)(a).

13. Section 12 of the Act mirrors part VA of the Marriage Act 1961 (the Marriage Act) in determining whether or not a marriage is recognised under Australia’s migration law. Generally, if a marriage takes place outside Australia, in order for it to be recognised under Australian migration law it must be recognised under the laws of the government of the country in which that marriage occurred. A marriage not recognised in the country in which it was solemnised will not be recognised under the Marriage Act or the migration law.

14. Marriages that are solemnised in or outside Australia in accordance with customary or religious practices may not necessarily be recognised as valid under the laws of the country where the ceremony was performed. 

15. The parties belong to the Ahmadiyya community, a minority sect of Islam in Pakistan.  Ahmadiyya is an Islamic religious movement founded in Punjab, British India, near the end of the 19th century. It originated with the life and teachings of Mirza Ghulam Ahmad.  The sect has long been persecuted in Pakistan by Sunni Muslims who do not see the Ahmadiyya as Muslims.  This persecution extends to the Government of Pakistan refusing to recognise and register their marriages under the Muslim Family Laws Ordinance 1961.  A marriage registration certificate issued by the Ahmadiyya Marriage Office, dated 15 April 2017 has been submitted confirming the date of the marriage and also explaining that under the constitution of Pakistan, the Ahmadiyya people have been declared non-Muslim and the nikah is not recognised for official marriage registration.  The Ahmadiyya Marriage Office also certifies that the office was fully competent to enter and maintain records of the nikah and Divorce of the Ahmidayyian community around the world.  In addition a Government of Pakistan National Database and Registration Authority, Ministry of Interior, Family Registration Certificate was issued showing that the parties were married. The Tribunal accepts that the marriage is recorded; it is nevertheless not a ‘recognised’ marriage under Pakistani domestic law.  

    Are the parties validly married?

16. After considering all of the evidence available the Tribunal is not satisfied that the marriage between the applicant and sponsor is recognised by the government of the country in which it occurred and consequently finds that the applicant is not the spouse of the sponsor for the purposes of Australia’s migration regulations. 

17. As the parties were married under a nikah ceremony on 23 April 2015 the Tribunal is not satisfied that the Pakistani authorities recognise the marriage and, as such, that it is a marriage that can be recognised for the purposes of the Australian Marriage Act. The Tribunal therefore is required to assess the relationship against the s.5CB provisions for a de facto partnership and r.1.09A.

18. On the evidence, the parties were not 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 parties in a de facto relationship?

19. As the applicant and review applicant are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a married relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s.5CB of the Act. 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). The applicant and sponsor, whilst being cousins, are not considered to be related by family under s.5CB(4).

20. 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 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.

21. After careful consideration of all of the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is not the de facto partner of the sponsor within the meaning of s.5CB of the Act. Below the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.09A(3), and the reasons for its decision.

22. The Tribunal has considered the documentary evidence submitted with the application and the additional documentary evidence that has been submitted to the Tribunal. The Tribunal has also had the benefit of the applicant’s and the sponsor’s oral evidence and the evidence of two witnesses. The Tribunal found the applicant and the sponsor at times presented contradictory and inconsistent evidence to the Tribunal during the hearing. These contradictions and inconstancies were put to the sponsor in accordance with s.359AA and the Tribunal found the responses acceptable within reason.

    Inception and development of relationship

23. The parties told the Tribunal that they have known each other from a young age and remained in contact with each other after the sponsor migrated to Australia with her family in January 2013. The parties have been transparent about the fact that their relationship was arranged in the sense that their families considered that they were a suitable match although initially the sponsor’s parents were reluctant for the nikah to occur. 

    Financial aspects

24. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses.

25. The applicant told the Tribunal he is working in a government job in Pakistan with the Judiciary. The applicant told the Tribunal that he is a graduate accountant and wished to continue his studies in Australia. The applicant said that he has a joint bank account in Pakistan with his elder brother and that his whole salary is deposited into the account to support his family. The applicant told the Tribunal that he receives money transfers from the sponsor almost every month and he uses the money for his personal needs.  The sponsor stated that she is earning between six to seven hundred dollars per week and is working two jobs and sends money via money transfers to the applicant an a regular basis. The sponsor has provided evidence of having sent the applicant funds for the period 24 August 2016 to 27 March 2017. The Tribunal accepts that the sponsor has provided some financial support to the applicant.  

26. There is no evidence before the Tribunal that the parties have any joint liabilities or major assets such as real estate together. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other.

27. The Tribunal accepts there is a degree of difficulty in establishing and sharing financial resources when the sponsor and applicant live in separate countries. Given the parties’ limited resources and their geographical separation for reasons outside their control, the Tribunal places limited weight on this matter.

    Nature of the household

28. The Tribunal has considered the nature of the household including any joint responsibility for the care and support of children if any, living arrangements of the parties and the sharing of the responsibility for housework.

29. The parties have provided evidence that they did not enter into a committed relationship until they married on 23 April 2015, and that they had planned to live as a married couple after the walima (marriage banquet), which follows the nikah and was to be performed when the applicant arrived in Australia. The parties’ evidence is that because the applicant’s visa application was significantly delayed, the families of the parties consented to the walima taking place at the Bandhan Marriage Hall in Pakistan on 19 March 2017. The parties stated that after the walima occurred they lived as a married couple and went on a honeymoon to Murree in Pakistan for five days. The parties provided a copy of an invoice for their stay at the Top View Hotel in Murree. The parties also provided copies of the invitation and photographic evidence of the walima ceremony. The parties claimed to have lived together at the applicant’s family home for approximately three weeks after their honeymoon in Pakistan. Although there is limited evidence of the parties establishing a household together in this period the Tribunal accepts that they lived in the same household together. The sponsor provided evidence of notifying government authorities such as Centrelink and the Australian Tax Office in Australia that she is in a spousal relationship with the applicant.

30. The Tribunal accepts there are difficulties associated with establishing a joint household and living together for significant periods of time when the parties live in separate countries. The Tribunal places some weight on this aspect of the relationship.

    Social aspects

31. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being in the requisite relationship, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

32. The parties have provided significant photographic evidence of their nikah and post wedding photographs of the walima in the company of family and friends.  The Tribunal accepts on the photographic evidence provided that that the parties are known to each other and demonstrate social recognition of the parties as spouses. Overall, the parties provided consistent evidence of their social activities and travel together in Pakistan. The Tribunal is satisfied that within the parties’ family and social circles the relationship is recognised as a genuine and continuing spousal one, notwithstanding the marriage not being valid under Australian law. 

33. The parties provided two statements (form 888,) which are identical from the sponsor’s parents that give little detail to the inception and development of the parties’ relationship or convincing reasons as to why they believe the relationship is genuine other than the families have known each other for a long time and the parties are married. The Tribunal places little weight on the statements. 

34. Overall, the Tribunal accepts the applicant and the sponsor plan and undertake social activities and travel together. The Tribunal is satisfied that the parties represent themselves to family, friends and other people as being in the requisite relationship. The Tribunal is satisfied that family, friends and relatives view the relationship as a genuine and committed one.

    Commitment

35. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

36. The parties claim to have known each other from a very young age and from 2012 sought to convince their families that they may be suited to each other in the view of arranging a marriage, and entered into a committed relationship at the time of their marriage, on 23 April 2015. The sponsor migrated to Australia with her family in January 2013. The parties claim to have remained in regular contact with each other via WhatsApp and Skype. The parties married in April 2015 and cohabitated for a month together in Pakistan after the wilima (wedding banquet) was performed in March 2017. To date, the relationship has existed for a period of over three years since their marriage. 

37. The evidence of communication between the parties is extensive, and the couple also interact with each either genuinely. The Tribunal considers that the parties’ knowledge of one another and their everyday concerns is a function of this communication. 

38. The parties’ provided evidence in relation to their future plans together in Australia. They stated that they would both work finding stable employment with a view to financial security and eventually find their own place to live. They further stated that they would also pursue further studies. They provided evidence that they love each other and see their relationship as a long term one.

39. The parties have now been married (even though this marriage is not recognised in Australia) and in a committed relationship for over three years despite the fact they have not been able to be reunited.  The Tribunal is satisfied that the parties see their relationship as long-term, have a mutual commitment to one another to the exclusion of others and are not living separately and apart on a permanent basis.

40. On the basis of the above the Tribunal is satisfied that the requirements of s.5CB(2) are met at the time of application and decision. Therefore, the applicant meets cl.309.211 and cl.309.221.

    Are the additional criteria for a de facto relationship met?

41. 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.

42. 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.

43. There is no evidence that the relationship is registered under a relevant State or Territory law or that the sponsor held, holds or is applying for a permanent humanitarian visa, so they must meet the 12 month requirement.

44. The parties are not purporting to have been in a relationship for at least 12 months before the visa application and stated that at the hearing. They have been open in that their cultural background and the circumstances of the sponsor’s travel to Australia meant that the relationship in effect came into existence on the day of their marriage on 23 April 2015 and they never established a joint household together until after the walima on 19 March 2017. 

45. Accordingly, the Tribunal is not satisfied that the applicant had been in the de facto relationship for at least the 12 month period ending immediately before the date of the application.

46. Therefore, the issue before the Tribunal is whether the applicant can establish compelling and compassionate circumstances for the grant of the visa: r.2.03A(3). The expression ‘compelling and compassionate circumstances for the grant of the visa’ is not defined in the legislation. Having regard to the ordinary meaning of the words, ‘compassionate’ suggests ‘circumstances that invoke sympathy or pity’. ‘Compelling’ in its wide, ordinary meaning means ‘forceful’ and, therefore, convincing: see Paduano v MIMIA [2005] FCA 211.

1. The Tribunal asked the applicant and sponsor if they could provide evidence to establish compelling and compassionate reasons for the grant of the visa.

2. The applicant told the Tribunal that the main reason that compelling and compassionate reasons exist for the grant of the visa are that the parties are incomplete without each other. He further stated that there are emotional issues involved and that he and the sponsor are suffering from depression due to being separated. The sponsor told the Tribunal that the parties do not have much time to live together. She further stated that their families are very religious and the parties were not allowed to live together for cultural reasons before marriage. The sponsor said that the parties love each other and they have provided proof of their marriage to the Tribunal and they have not done anything wrong.

3. The Tribunal has considered the evidence provided. While the Tribunal accepts that the applicant and sponsor have been in a genuine relationship for over three years, a genuine de facto or spousal relationship is the basic requirement for a partner visa application, and the parties have failed to satisfy the Tribunal that the longevity of their relationship, their love of each other and that they had to live apart because of cultural reasons, is a compelling or compassionate reason for the grant of the visa. The Tribunal accepts that the parties have provide proof of their marriage but is not satisfied that the marriage between the applicant and sponsor is recognised by the government of the country in which it occurred and consequently finds that the applicant is not the spouse of the sponsor for the purposes of  Australia’s migration regulations. 

4. It is reasonable to expect a level of emotional hardship to be experienced if partners are separated from one another for any extended period of time.  This is a common experience for a large number of applicants applying from offshore to migrate to Australia on the basis of their relationship with an Australian citizen or permanent resident.  Although emotional hardship can be considered a compassionate and compelling factor in relation to the grant of the visa, neither the sponsor nor the applicant has provided sufficient evidence to substantiate such claims and demonstrate the severity of the anticipated emotional and psychological hardship and how it would differ to that experienced by other couples required to separate whilst they await an offshore application or had to reapply for a partner visa because they did not satisfy the criteria required. 

5. The Tribunal accepts that there would be a degree of emotional stress and depression if the parties were separated for any lengthy period of time and the applicant had to reapply and satisfy the criteria for a partner visa again. The applicant and sponsor provided the following documentary evidence from their local GPs in relation to their depression:

6. The applicant provided a letter from a psychologic specialist at the Aziz Bhatti Shaheed Teaching Hospital, Gujrat in India dated 17 January 2018, which diagnoses the applicant as suffering from depression and lists his medication.

7. The sponsor provided a medical certificate from her local GP in Blacktown, Australia, dated 22 January 2018. The doctor states that the sponsor is suffering from recurrent migraine headaches and anxiety/panic attacks. The doctor further states that he is aware that the sponsor has applied for a visa for her husband, and the immigration department has asked for a medical letter from her doctor. The sponsor’s doctor also states that he would support any consideration of fast processing her partner visa. The Tribunal does not consider the anxiety and stress potentially generated by an offshore application represents a compelling and compassionate reason for the grant of the visa.  

8. Based on the evidence contained in the parties’ doctors’ reports, the Tribunal finds that there is no evidence that the applicant and sponsor would suffer a degree of emotional stress or depression that would differ significantly from any other applicant applying for a partner visa. The Tribunal, after consideration of the evidence provide by the parties doctors does not consider this a compassionate or compelling reason to grant the visa.

9. The applicant also told the Tribunal that compelling and compassionate reasons exist for the grant of the visa because the sponsor’s father had travelled to Pakistan and married a second wife and this had hurt the whole family. The Tribunal notes the sponsor provided evidence that she lives with her parents and two siblings and they currently all live in the same household at Quakers Hill. The sponsor also stated that she finds it hard to speak about her father entering into a second marriage with another woman in Pakistan. The Tribunal accepts that the sponsor’s father may have damaged his relationship with his family and there is a degree of pain associated within the family because of his actions, but notes they still continue to live together as a family unit. The Tribunal after considering the evidence provided, does not find that the fact that the sponsor’s father has two wives and as a result there is some hurt within the sponsor’s family, is a compassionate and compelling reason to grant the visa.

10. The parties provided evidence that they belong to the Ahmadiyya Muslim Community, which is considered a minority and non-Muslim in Pakistan according to the Constitution of Pakistan. They further state that as the Pakistani Government considers Ahmadis a minority, they do not provide Government registered marriage certificates and they have their own authorities which provide Ahmadis their marriage certificates. The parties claim their own authority is authorised by the Pakistani government to issue marriage certificates similar to Christians, Hindus and Buddhists. The parties state that they cannot get their marriage registered in Pakistan. The parties also claim that their marriage is recognised in Pakistan as they have changed their National Identity Card (NIC) provided by the National Database (NADRA) to indicate they are husband and wife. These cards were issued on 27 April and 27 May 2017 after their marriage. The Tribunal accepts that the parties have changed their status on their NIC. The Tribunal accepts that the laws in Pakistan operate to preclude the sponsor and applicant from having a legally recognised marriage on the basis of their Ahmadi faith. The Tribunal notes but for their religion, it would appear that their marriage would be recognised in Pakistan and therefore recognised under Australian law. Based on the evidence provided the marriage between the applicant and sponsor is not recognised by the government of the country in which it occurred nor is it a marriage that can be recognised for the purposes of the Australian Marriage Act. Based on the information provided, the Tribunal is not satisfied that compelling and compassionate circumstances exist to grant the visa because the marriage is not legally recognised in Pakistan.  

11. The Tribunal has considered the totality of the applicant’s circumstances.  Having considered the circumstances singularly and cumulatively, the Tribunal is not satisfied that there are compelling and compassionate circumstances to grant the visa.

12. For these reasons the Tribunal is not satisfied that the visa applicant meets the additional criteria prescribed in r.2.03A.

13. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

14. The Tribunal affirms the decision not to grant the applicant a Partner (Provisional) (Class UF) visa.

    Russell Matheson
    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).