Rezai (Migration)

[2020] AATA 5489

Rezai (Migration) [2020] AATA 5489 (8 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nasrin Rezai

VISA APPLICANT:  Mr Mohammad Hussain Rezai

CASE NUMBER:  1902102

DIBP REFERENCE(S):  BCC2017/2266861

MEMBER:Steven Griffiths

DATE:8 October 2020

PLACE OF DECISION:  Adelaide

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:

·Public Interest Criterion 4020 for the purposes of cl.309.225 of Schedule 2 to the Regulations

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 8 October 2020 at 1.33pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – bogus document – no valid identity documents – satisfaction of applicant’s identity – identification documentation obtained – photographic evidence – genuine spousal relationship – financial aspects – nature of household – social aspects – nature of commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), Schedule 2, cls 309.211, 309.221, 309.225; Schedule 4, PIC 4020

CASES
Arora v MIBP [2016] FCAFC 35

Batra v MIAC [2013] FCA 274
He v MIBP[2017] FCAFC 206
Kaur v MIBP [2017] FCAFC 184
Plaintiff M64/2015 v MIBP [2015] HCA 50
Trivedi v MIBP [2014] FCAFC 42

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 17 December 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, Mr. Mohammad Hussain Rezai, applied for the visa on 27 June 2017 on the basis of his relationship with his sponsor, the review applicant, Mrs. Nasrin Rezai. 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 had not satisfied cl.309.225 and Public Interest Criterion 4020 (2A) of Schedule 4 to the Migration Regulations 1994 that the applicant satisfies the Minister as to the applicant’s identity.

4. The parties were assisted by their registered migration agent, Ms. Libby Hogarth of Australian Migration Options.

5. The Tribunal has determined, from its review of the information contained in the Department of Home Affairs file from the visa application, and the Tribunal file as part of the review application, to be in a position to make a decision on the papers and resolved to cancel a hearing, set for 14 October 2020, in which the sponsor, applicant and two sons of the parties had indicated they were to provide oral evidence.

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

   BACKGROUND OF THE EVIDENCE

7. Mr. Mohammed Hussain Rezai was born in Jaghori Province, Afghanistan, in 1959. His parents are deceased, with his two brothers, born 1962 & 1969, also deceased. He and the sponsor married in 1989, having 6 children.

8. Mrs. Nasrin Rezai was born in Afghanistan in 1969. Her parents are deceased, and she has a brother and sister, born 1965 & 1967, living in Pakistan. She married the applicant in 1989, and they had 4 sons and 2 daughters, born 1989, 1993, 1996, 1998, 1999 and 2000, with the sons born in 1996 & 1999 now deceased, the eldest child, a daughter, living in Iran and the other 3 children living in Australia, they all being Permanent Residents. She arrived in Australia on 30/1/14, with a daughter and son, on a Humanitarian Visa.

9. The Delegate of the Minister determined the identity of the applicant was not proven by information provided as part of the application and that he was unable to provide plausible reasons as to how he facilitated travel between, and residing in, different countries for extended periods.

10. Based on this information, the delegate was not satisfied as to the applicant’s identity and found that he did not meet the criterial in PIC 4020(2A) as to identity. The delegate noted that the provisions to waive PIC 4020 requirements do not apply to PIC 4020(2A) and therefore the applicant did not meet this criteria, and by failing to meet PIC 4020 he failed to meet the criteria in cl.309.225 and the application was refused. 

    INFORMATION TO THE TRIBUNAL

11. Since the Department of Immigration made its decision, the applicant has provided further information to the Tribunal including:-

    Review application lodged 30/1/19

    Migration Agent Submission, 23/3/20

    Affidavit, from Ms. Jaziba Sara, daughter-in-law of applicant, 19/8/19

    Affidavit, from Mr. Saleem Ali, father of daughter-in-law of applicant, 19/8/19

    70 photos of visa applicant and family in Pakistan, stated to be from 2020

    4 Money transfers, $ 300 in 4/2017, $ 240 in 10/2019, $ 1996 in 10/2019 and $ 1,971 in 11/2019 to applicant from son

    Applicant statement, provided by Migration Agent and taken from telephone interviews on 25/10/19 & 28/2/20

    Applicant Tazkira and translated documents

    Applicant Afghanistan passport

    Request, dated 23/3/20, for decision on papers or priority of hearing

    Sponsor confirmation of Breast Cancer and support letter from treating doctor for applicant to be in Australia to support her in treatment / recovery – dated 5/5/20

    Migration Agent request for priority processing and decision on papers, 6/6/20

    Sponsor Movement Record, being trips to Pakistan on 4/10/14 to 16/11/14 (32 days) AND 19/11/15 to 13/2/16 (86 days) AND 21/2/17 to 5/4/17 (43 days) AND 31/7/18 to 14/9/18 (46 days) AND 28/12/19 to 11/2/20 (45 days) – total of 252 days over 6 years

    Migration Act, 1958, Section 375 A Certificate issued by the Minister

12. The Tribunal notes the parties had lodged a Section 362A access to written material request on 13/8/19, with the Tribunal responding on 19/8/19, with the information provided confirming a Section 375 A Certificate was in place for 2 pages of the files and access to these pages were excluded.

13. The Tribunal notes no reference to this Section 375 A Certificate of two excluded pages of the file was made by the applicants in any submissions received from 19/8/19.

14. The Tribunal has read and considered the information contained in the 2 excluded pages and determines the information covered by the Section 375 A Certificate is not adverse information impacting on the decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The Tribunal has taken into consideration all the evidence in the Department of Home Affairs file and the Tribunal file.

16. A Partner (Provisional)(Class UF) visa contains Subclass 309. The criteria for a Subclass 309 visa are set out in Part 309 of Schedule 2 of the Migration Regulations 1994 (the Regulations). The issue in this review is that the delegate found Mr. Rezai did not meet the requirement in cl.309.225, being that he meets public interest criterion 4020 (PIC 4020). Broadly speaking, this requires that:

    ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, of Medial Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and

    ·the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and

    ·the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and

    ·neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).

17. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.

    Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

18. In this case the delegate found that the applicant did not provide any valid identification details for the period prior to 2016, that he had resided in Afghanistan until 1998 and then Pakistan, Iran, Turkey, going back to Iran and now Pakistan, having lived illegally while in Iran, Turkey and Pakistan, and that his first Tazkira identification document, provided as part of the visa application, was obtained by an agent fraudulently, with his children, then living in Australia, advising him of this and told him to travel to Afghanistan and obtain a new Tazkira. 

19. The Tribunal notes the concerns of the Delegate on the information provided by the applicant during a telephone interview of 12/4/18 and the concerns raised on the applicant’ s identity based on his claim to have lived to the age of 56 without any identity documents yet still travelled and resided in four separate countries.

20. The term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.

21. A ‘bogus document’, is defined in s.5(1) as a document it is reasonably suspected purports to have been, but was not, issued in respect of the person, or is counterfeit or has been altered by a person who does not have authority to do so, or was obtained because of false or misleading statement, whether or not made knowingly.

22. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.

23. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.

24. In this case, the applicant has continually declared that he travelled illegally to Iran with no identity documents with the assistance of the people smuggler, then after 4 years paid a people smuggler to take him to Turkey illegally, where he has held in an underground cell by Turkish Kurd before escaping and when presenting himself to the Turkish Army / Police was taken by them to Iran without any documents before being caught by the Police and sent to the border area with Pakistan of Taftan where he paid a person to return him to Pakistan.

25. The Tribunal notes the concerns of the delegate that the applicant, to reside at various times in 4 countries, must have only been able to travel with documents and that by stating now that he did not have identification documents led the delegate to the conclusion that he is concealing his true identity by now not claiming to have a genuine Tazkira or identity documents until the Afghanistan Passport was obtained in August 2017.

26. The Tribunal accepts the submission of the migration agent dated 23/3/20 which states the applicant travelled to Afghanistan twice for the purpose of obtaining identification documents, being the Tazkira and Passport and the statement that this travel was inadvertently missed from the record of travel provided as part of the visa application and that the Tazkira was legitimate and obtained by the applicant in person, and not an agent.

27. The Tribunal accepts the submission of the migration agent dated 23/3/20 which confirms the corrected, independently provided, translated copies of the first Tazkira, in which the date of issue is confirmed as March 2017, and replacement duplicate Tazkira, issued in December 2018, and confirming of the applicants date of birth and age, a critical part of demonstrating that the applicant had not previously held an identity document, and that prior to the issue of a passport the Tazkira must be verified as correct.

28. The Tribunal accepts the submission of the migration agent dated 23/3/20 which states the first Tazkira was lost during one of the attempts of verification and was replaced with a 2018 issued Tazkira, obtained by the applicant.  

29. The Tribunal accepts the documented statement, produced by the migration agent following telephone interviews with him on 25/10/19 and 28/2/20 in which the applicant states his reliance on others, due to his lack of education, for various supports over the years.  

30. As a result, I am not satisfied that there is evidence the applicant has provided a bogus document or information that is false or misleading in a material particular, and he meets PIC4020(1).

    Has a visa previously been refused on the basis of a failure to satisfy PIC 4020 (1)

31. PIC 4020 (2) required the Tribunal to be satisfied that the applicant and each member of the family unit have not been refused a visa because of the failure to satisfy PIC 4020 (1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. This requirement does not apply to a person who was under 18 at the time of the application for the refused visa was made: PIC 4020(2AA).

32. There is no information which indicates the applicant has previously been refused a visa on the basis of failing to satisfy PIC 4020.

33. Therefore, PIC 4020(2) is met.

    Has the applicant satisfied the identity requirements?

34. PIC 4020(2A) requires an applicant to satisfy the Tribunal as to his or her identity.

35. The basis of the Departments decision was that the delegate was not satisfied as to the identity requirements of the applicant, noting no form of identification was provided by the applicant relevant to before 2017, and the travel through, and residence of, 4 countries. 

36. The Tribunal finds that it accepts the submission of the migration agent dated 23/3/20 and the included affidavit evidence in knowing the applicant by Jazbira Sara and Saleem Ali, 70 photos of the applicant and family members from 2020 including the marriage of a son, money transfers to the applicant from his family in Australia and statement made by the applicant on 25/10/19 & 28/2/20.

37. The Tribunal accepts the identification documentation and photographic evidence of the applicant with family members while living in Afghanistan and Pakistan prior to their separation provided as part of the visa application. 

38. After weighing all the evidence, the Tribunal is satisfied of the identity of the applicant, that being Mohammed Hussain Rezai, born on 29 April 1959 who identified himself in the Partner visa application.

39. Therefore, the applicant meets PIC 4020(2A).

    Has a visa application been refused on the basis of a failure to satisfy PIC 4020(2A)?

40. PIC 4020(2B) requires that neither the applicant nor any family unit member have been refused a visa because of a failure to satisfy the identity requirements of PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused. The requirement does not apply to a person who was under 18 at the time the application for the refused visa was made: PIC 4020(2BA).

41. There is no information which would indicate the applicant has previously been refused a visa because of failure to satisfy PIC 4020(2A).

42. Therefore, PIC 4020(2B) is met.

    Should the requirements of PIC 4020(1) or (2) be waived?

43. The Tribunal has concluded that the applicant does meet the requirements of PIC 4020(1) and PIC 4020(2A).

44. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.

45. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.

46. The basis of any compassionate or compelling circumstance that affects the interests of an Australian permanent resident or citizen is the fact that the applicant is married to an Australian permanent resident and children who are Australian residents, citizens.

47. The Tribunal accepts that the parties have been married since 1989, have 6 children born between 1989 and 2000, with 2 of them now deceased, and have been living apart since 2007, with the wife and children of the applicant travelling from Australia to be with him in 2014, 2015, 2017, 2018 and 2019 for a total of 252 days over a 6 year period.

48. The Tribunal accepts the of money being transferred to the applicant by his family in Australia since October 2015.

49. The Tribunal accepts the documented evidence of the sponsor being diagnosed with breast cancer in April 2020 and wanting her husband to be in Australia with her while undergoing treatment and the recovery.

50. Overall, the Tribunal is satisfied that the difficulties and hardships that would face the applicant’s family in Australia provides a compassionate or compelling circumstance that justifies the waiving of PIC 4020 (1).  

51. There is no other information before me to show that the applicant does not otherwise meet PIC 4020 and I find that he satisfies PIC 4020 for the purposes of cl.309.225.  

    Whether the parties are in a spouse or de facto relationship

52. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who has been an Australian permanent resident since 30/1/14.  

53. ‘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).

1. 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?

2. At the time the visa application was made the visa applicant provided evidence of being married to the sponsor in 1989.

3. The Tribunal accepts that no documented evidence exists of the marriage, and has accepted the photographic and documented statements and finds that the parties are married to each other at the time of the visa application and this decision, with the marriage valid for the purposes of the Act as required by s.5F(2)(a).

   Are the other requirements for a spouse relationship met?

   Financial aspects of the relationship that must be considered include:-

   (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 expense

4. The Tribunal determines from the documented evidence of the parties that at the time of the visa application and this decision, no real estate was or is jointly owned by the parties. 

5. The Tribunal determines from the documented evidence of the parties that at the time of the visa application and this decision, the parties do not have any joint liabilities.

6. The Tribunal determines from the documented evidence that at the time of the visa application and this decision, none of the parties has a legal obligation with regard to the other.

7. The Tribunal accepts the documented evidence of money transfers from the family of the applicant, from 16/10/15 and totalling $ 10,130.00 being provided to the applicant to support his living expenses while living in Pakistan with the parents of his wife, the sponsor, and determines, at the time of the visa application and this decision, this provision of regular funds to represent the pooling of financial resources and the sharing of day-to-day household expenses. 

   Nature of the household aspects that must be considered include:-

   (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

8. The Tribunal accepts the documented and photographic evidence from the parties of having 6 children, being 4 sons and 2 daughters, born in 1989, 1993, 1996, 1998, 1999 and 2000.

9. The Tribunal accepts the documented evidence that their sons born in 1996 and 1996 are deceased, with their eldest child, a daughter, living in Iran.

10. The Tribunal accepts the documented and photographic evidence of the sponsor and the remaining 3 children living in Australia.

11. The Tribunal accepts the documented evidence that the applicant was separated from the family in 2007, while acknowledging that from the period of contact between the parties after the sponsor and 2 of the children came to Australia in January 2014, this contact starting in mid-2014, the parties are in regular contact and they  parties have a joint responsibility for the care and support of children.

12. The Tribunal accepts the photographic and documented evidence of the marriage of a son of the parties, in Pakistan in late 2015, and the joint role they had as parents of the groom and recognise this is joint responsibility for the care and support of children.

13. The Tribunal accepts the photographic and documented evidence of the marriage of a son of the parties, in Pakistan in February 2020, and the joint role they had as parents of the groom and recognises this as joint responsibility for the care and support of children.

14. The Tribunal accepts the photographic and documented evidence of the parties living arrangements and determines, at the time of the visa application and this decision, they live in different countries, with the sponsor having travelled to Pakistan in October 2014, November 2015, February 2017, July 2018 and December 2019, for a total of 252 days, to be with the applicant.     

15. The Tribunal accepts the photographic and documented evidence on the roles each undertakes in the household during the 252 days the sponsor has lived with the applicant in Pakistan since October 2014 and determines, at the time of the visa application and this decision, the parties share the responsibility for housework when living together.

    Social aspects of the relationship that must be considered include:-

    (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

16. The Tribunal accepts the photographic and documented evidence and determines, at the time of application and this decision, the parties were married in 1989 and represent themselves to other people as being married to each other. 

17. The Tribunal accepts the photographic and evidence of family and friends of the parties and determines, at the time of application and this decision, the opinion of family, friends and acquaintances as being supportive of the relationship and marriage.

18. The Tribunal accepts the photographic and documented evidence and determines at the time of application and this decision, the parties plan and undertake joint social activities when the sponsor is in Pakistan with the applicant.

    Nature of the commitment to each other that must be considered include:-

    (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.

19. The Tribunal accepts the photographic and documented evidence of the parties marrying in 1989.      

20. The Tribunal accepts the photographic and documented evidence that the parties having lived together from 1989 to 2007 and for 252 days over 5 visits by the sponsor and children from October 2014 to February 2020.

21. The Tribunal accepts the documented evidence of the issues the parties have dealt with during their married lives, and the support provided to each other in getting through these issues, and determines, at the time of application and this decision, that a high level of companionship and emotional support is provided by each of the parties.

22. The Tribunal notes the documented evidence of the sponsor being diagnosed in early 2020 with breast cancer and the desire of the parties for the applicant to be in Australia to care for the sponsor during her treatment and recovery and accepts this as an indication of a high level of companionship and emotional support.

23. The Tribunal accepts the documented evidence of the parties and determines, at the time of application and this decision, they have had and continue to have an ongoing commitment to each other and see the relationship and marriage as being long-term.

    Any other circumstances in the relationship

24. The Tribunal notes that the sponsor and 2 of the children were sponsored to come to Australia on a humanitarian visa by the eldest son of the parties who was already a resident of Australia.

25. The Tribunal notes the documented evidence of the visa application file created by the Department and the notation, following a telephone interview with the applicant in April 2018, that the judgement was that the married relationship of the parties was supported.

26. The Tribunal considered all the evidence on the circumstances of the parties and determines that the evidence supports a finding that, at the time of the application and this decision, the parties have had and continue to have a mutual commitment to a shared life together as a married couple to the exclusion of all others, with the relationship genuine and continuing.

27. The Tribunal accepts that the parties have been in a committed relationship since 1989 and determines that at the time of the application and this decision the parties live in different countries but since October 2014 for the first of a now five visits in by the sponsor and children to be with the applicant have lived together for 252 days.   

28. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of the visa application and the time of this decision. The Tribunal is further satisfied the sponsor is not prohibited by subclause (2B) from being a sponsoring partner.

29. Therefore the visa applicant meets cl.309.211 and cl.309.221. 

30. 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

31. 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:

    ·Public Interest Criterion 4020 for the purposes of cl.309.325 of Schedule 2 to the Regulations

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Steven Griffiths
    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).

    Migration Regulations 1994

    Schedule 4

    4020(1)         There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

    (a)the application for the visa; or

    (b)a visa that the applicant held in the period of 12 months before the application was made.

    (2)The Minister is satisfied that during the period:

    (a)starting 3 years before the application was made; and

    (b)ending when the Minister makes a decision to grant or refuse to grant the visa;

    the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

    (2AA)However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (2A)The applicant satisfies the Minister as to the applicant’s identity.

    (2B)      The Minister is satisfied that during the period:

    (a)          starting 10 years before the application was made; and

    (b)          ending when the Minister makes a decision to grant or refuse to grant the visa; neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

    (2BA)However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

    (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

    (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

    (a)compelling circumstances that affect the interests of Australia; or

    (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

    justify the granting of the visa.

    (5)In this clause:

    information that is false or misleading in a material particular means information that is:

    (a)false or misleading at the time it is given; and

    (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.