Saleem (Migration)
[2024] AATA 3698
•6 August 2024
Saleem (Migration) [2024] AATA 3698 (6 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Muhammad Saleem
CASE NUMBER: 2205164
HOME AFFAIRS REFERENCE(S): BCC2016/3341689
MEMBER:P. Maishman
DATE:6 August 2024
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.
Statement made on 06 August 2024 at 4:18pm
CATCHWORDS
MIGRATION –Partner (Migrant) (Class BC) visa – Subclass 100 – review applicant failed to attend the scheduled hearing – applicant failed to provide requested information – not satisfied the marriage was solemnised by a marriage celebrant authorised to do so – not satisfied that the applicant is the spouse or a de facto partner of the sponsoring spouse –decision under review affirmedLEGISLATION
Migration Act 1958, ss 5, 65, 362, 379
Migration Regulations 1994, r 1.09, Schedule 2, cl 100.221CASES
He v MIBP [2017] FCAFC 206STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 March 2022 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 9 October 2016 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).
The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (Cth) (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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 100.221(2)(b) because the delegate was not satisfied the applicant was the spouse or de facto partner of the sponsoring partner.
On 26 June 2024 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant and his sponsor to give evidence and present arguments at a hearing on 6 August 2024. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent him and SMS reminder about the hearing 5 business days before the scheduled hearing.
On 2 July 2024 the applicant emailed the Tribunal requesting an extension to his hearing date. The applicant advised he could not attend the hearing because he went to Pakistan on 10 June 2024 to care for his mother post-surgery. An undated letter from Dr Asifa Kamran, infertility specialist, indicates Ms Zainub Begum was advised to have breast surgery for fibroadenoma on 14 June 2024.
The applicant provided no indication of when he might return to Australia or when he would otherwise be available to participate in a hearing of his application. Dr Kamran’s letter does not indicate the applicant’s presence is required to assist Ms Begum. The Tribunal notes the applicant has indicated he has a brother and sister residing in Pakistan (at the time of his visa application). The applicant has provided no explanation of why he is the only one who can look after his mother.
On 3 July 2024 the Tribunal declined the applicant’s request to extend the hearing date and notified the applicant the hearing would proceed by MS Teams (video) allowing him to appear from overseas by video.
No further response to the hearing invitation was received. However, the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5), the invitation has not been returned to sender, and an SMS reminder was also sent to the review applicant about the hearing. The Tribunal called the applicant’s listed phone number at the scheduled hearing time and 15 minutes after the scheduled start time. The applicant did not answer the calls.
In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Departments file. The Department’s file includes copies of correspondence to the applicant dated 3 February 2020, 16 June 2020, 15 July 2021, and 25 October 2021 requesting the applicant to provide evidence of his relationship with the sponsor. The requests include examples of relevant evidence.
The applicant gave the Tribunal a copy of the delegates decision record with his application for review. The delegate records that the applicant provided a ceremonial marriage certificate dated 7 March 2016. The delegate recorded the applicant provided no evidence of the financial or social aspects of his relationship with his sponsor and no evidence of the nature of their shared household or the nature of the commitment to each other.
On 26 June 2024 Tribunal wrote to the applicant inviting him to provide evidence in support of his application addressing the financial aspects of the relationship; the nature of the household; the social aspects of the relationship; and the nature of the applicant and sponsor’s commitment to each other. The Tribunal’s letter included examples of evidence the applicant might provide as guidance. No response was received by the Tribunal.
The issue in the present case is whether at the time of this decision the applicant is the spouse or de facto partner of his sponsor.
Whether the parties are in a spouse or de facto relationship
Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen.
The Tribunal has had regard to the applicant’s related application dated 9 October 2016. Christy Sze Qi Chua is specified as the applicant’s spouse, claiming to have married in March 2016. Ms Chua’s Australian citizenship is evidence by a Citizenship certificate received by the Department.
In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.
The applicant has made no claims, and there is no evidence to suggest, that the sponsor is deceased or that the applicant has suffered family violence perpetuated by the sponsor.
‘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).
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.
The applicant recorded on his visa application that the official celebrant at his wedding was Hafiz Abdul (Celebrant ID A5426). The Departments file contains a ceremonial “Certificate of Marriage” indicating the applicant and sponsor were married in March 2016 according to the rites of Islam at Melbourne by Imam Muhammad A Wahid.
Notwithstanding the delegates noted concern that the applicant has not provided a registered marriage certificate the applicant has provided no further evidence to support that his marriage to the sponsor is valid.
The Tribunal is not satisfied the marriage was solemnised by a marriage celebrant authorised to do so.
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?
As the parties are not validly married, 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). Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
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 parties’ household and their commitment to each other as set out in reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
The Tribunal considered each of the reg 1.09A(3) circumstances.
The applicant provided no evidence indicating what the financial aspects of his relationship with his sponsor are at the time of decision. There is no current evidence before the Tribunal that the parties have joint ownership of assets or joint liabilities. There is no indication of the extent, if any, of pooling of financial resources. There is no evidence of any legal obligations owed to the other party or any sharing of day-to-day household expenses.
The applicant gave the Tribunal no evidence of the nature of the household at the time of this decision. There is no current evidence of any joint responsibility for care and support of children; parties’ living arrangements; or any sharing of housework.
The applicant provided no evidence of the social aspects of the parties relationship. There is no current evidence demonstrating whether the parties represent themselves to other people as being in a de facto relationship with each other; the opinion of their friends and acquaintances about the nature of their relationship; and there is no explanation or description of the basis on which the parties plan and undertake joint social activities.
The applicant provided no evidence of the nature of his and his sponsor’s commitment to each other. The parties claim to have first met in 2013; committed to a shared life together in January 2014 and married in March 2016. The applicant provided no evidence that the claimed relationship has endured. There is no evidence before the Tribunal indicating the applicant and sponsor continue to live together. There is no evidence before the Tribunal of the degree of companionship and emotional support they draw from each other, or whether they see their claimed relationship as long-term.
On the evidence before it, the Tribunal is unable to find that the applicant and sponsor, at the time of this decision, have a mutual commitment to a shared life to the exclusion of others; that they have a genuine and continuing relationship; or that they live together.
On the basis of the above the Tribunal is not satisfied that the requirements of s 5CB(2) are met at the time of this decision.
Therefore the applicant does not meet cl 100.221(2)(b).
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.
P. Maishman
MemberATTACHMENT - 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).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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