Samiullah (Migration)

[2022] AATA 2787

Samiullah (Migration) [2022] AATA 2787 (19 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samiullah

REPRESENTATIVE:  Mr Jayapal Reddy Vadlakonda (MARN: 0957482)

CASE NUMBER:  1912069

HOME AFFAIRS REFERENCE(S):          BCC2016/2289410

MEMBERS:M. Edgoose (Presiding Member)

C. Cartwright

DATE:19 July 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 19 July 2022 at 12:40pm

Statement made on 19 July 2022 at 12:35pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – validly married – limited financial, household and social aspects of relationship, and nature of commitment – perfunctory statutory declarations from applicant’s relatives and friends, and sponsor’s relatives and friends not supportive – allegation of contrived relationship and existing marriage in home country – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2)(a)-(d), 65, 359AA, 376
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 820.211(2)(a), 820.221

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 7 July 2016 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because the delegate considered the relationship is a contrived relationship for the purpose of obtaining a migration pathway to remain in Australia.

4. The applicant appeared before the Tribunal on 15 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Natasha Lee Rudd Friel, the sponsor.

5. The applicant was represented in relation to the review by his representative via telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

7. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

8. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. For the reasons outlined below, the Tribunal does not consider the parties are or were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a), (b), (c), or (d).

   Financial aspects of the relationship           

10. The applicant provided limited documentation and oral evidence to the Tribunal regarding the financial aspects of the relationship. The applicant stated to the Tribunal that he and the sponsor, have no joint ownership of real estate or other major assets, no joint liabilities and that neither the applicant nor the sponsor in the relationship owes any legal obligation in respect of the other. The applicant further mentioned to the Tribunal that there has been limited pooling of financial resources, especially in relation to major financial commitments and that given he has no work rights the day-to-day sharing of household expenses has been solely reliant on the sponsor’s income.    

11. The applicant informed the Tribunal that he has a joint ANZ account with the sponsor. The applicant stated to the Tribunal that the sponsor’s salary is deposited into the joint account and that the day-to-day expenses are paid from this account. The Tribunal notes that the applicant has no work rights as part of his Bridging Visa conditions and therefore makes no financial contributions to the joint account. At hearing the Tribunal questioned both the applicant and sponsor about the large cash deposits that had been deposited into the joint account. Both the applicant and sponsor mentioned to the Tribunal that the large cash deposits were because of the sponsor’s income from her “balloon artistry”. The sponsor informed the Tribunal that to make extra money she had performed “balloon artistry” at local shopping centres and most recently at Moomba. The sponsor informed the Tribunal that she was no longer performing “balloon artistry” as she had picked up an extra shift at her workplace.

12. The Tribunal notes that it became apparent during the hearing that the applicant and sponsor are not in a good financial position. The applicant informed the Tribunal that he owes AUD8,000 on a car loan in his name. He further mentioned that the car connected to this car loan had been involved in an accident and that at the time the car was not insured and therefore he was not in a position to have the car repaired. The applicant claimed at hearing that the sponsor is paying the car loan repayments of AUD50 per week. When the Tribunal asked the sponsor if she was paying the car loan repayments, she stated to the Tribunal that she knew nothing about this loan or about making the repayments. The only car which the couple have now is a Honda CRV which is owned outright.  The applicant informed the Tribunal that the Honda CRV is not insured, and that the registration is paid three months at a time due to their financial situation.

13. At hearing the sponsor informed the Tribunal that she has a gambling and drinking problem and that the money, over AUD2,000, she had earned during Moomba this year had been spent on gambling and drinking. The sponsor told the Tribunal that the applicant is not aware that she has borrowed money from family and friends, including friends of the applicant to service her gambling problem. Following this statement from the sponsor the Tribunal asked the applicant if he owed any money to family and friends. The applicant responded that he owes money to three friends and that he was under pressure to pay back the debt. The applicant stated that he owes between AUD10,000 to AUD12,000 to a friend named Zafar, AUD8,000 to AUD9,000 to a friend named Imran and AUD2,000 to a friend named Amir. In total the applicant owes more than AUD20,000 to his friends and as a couple they owe more than AUD30,000 to family and friends.

14. The sponsor informed the Tribunal that the only times as a couple they have pooled their financial resources was when they purchased a bed and their pet cats. The sponsor further mentioned that they have a joint veterinarian debt that is being repaid through her income. The Tribunal notes that the applicant and sponsor were not able to provide any further examples of when they have pooled their financial resources, especially in relation to major financial commitments.

15. The sponsor informed the Tribunal that her employment history has been sporadic and that she currently works for Honeywell working on water metres. Prior to this she had worked in a warehouse for DBZ.

16. Given the limited oral and physical evidence available it is difficult to see how the Tribunal can be satisfied that the applicant and sponsor genuinely have a mutual understanding of the financial aspects of this relationship. From the oral evidence provided at hearing the couple have kept particular financial decisions from each other, that being in the borrowing of money from family and friends for particular reasons. For these reasons the Tribunal overall places minimal weight on the only financial aspects of this relationship. 

    Nature of the household

17. At hearing the both the applicant and sponsor informed the Tribunal that there are no children and therefore no joint responsibility for the care and support of children. In fact, the sponsor is a sufferer of endometriosis, and is unable to conceive. The Tribunal is satisfied that at no point has there been any joint responsibility for the care and support of children.

18. The applicant informed the Tribunal that as a couple they currently rent a one-bedroom unit and that the sponsor pays the AUD1,200 per month. The applicant informed the Tribunal that the responsibility for housework is shared between himself and the sponsor. The applicant stated that the sponsor does the dishes and that as a couple they do the laundry, cleaning, and cooking. The applicant said to the Tribunal that the sponsor leaves for work each morning around 5am and generally returns between 2pm and 3pm. The applicant stated that his daily routine consists of praying each morning for 15 to 20 minutes. Following this, he claims to read the holy book every day for 15 minutes and then at 6am goes for a walk for approximately 1hour. On return from his morning walk he makes a cup of tea and his breakfast and then feeds the cats. At 10am he generally leaves the house and goes to visit his first cousins or a friend’s house before returning home around the same time as the sponsor. The applicant said that, at times, he just stays at the home. Given that the sponsor is the only income earner, the Tribunal is puzzled as to why the applicant does not do the majority of the housework given that he has no work rights. However, at hearing the sponsor stated to the Tribunal that the applicant does the majority of the housework because she was too tired after working. The typical daily routine of the applicant appears to the Tribunal to be that the applicant spends the majority of each day visiting his first cousins and friends and not enough time at home taking responsibility of the housework.

19. The applicant informed the Tribunal that the only reason they moved from the Socrates Way property was the owner decided to sell the house. The sponsor told the Tribunal that they moved because she didn’t like the neighbours at the previous property and that was one of the reasons for moving. 

20. The Tribunal is not satisfied given the limited evidence provided that the applicant and sponsor have demonstrated that they have a good understand of the nature of the household. For these reasons the Tribunal gives little weight to the claims that the applicant and sponsor share the responsibility for the household and household duties.

    Social aspects of the relationship

21. The applicant informed the Tribunal that he introduces the sponsor to other people as his wife. The sponsor mentioned that they don’t generally talk about how, as a couple, they representative themselves to other people. The sponsor however mentioned that they don’t have many friends in Victoria and that they have more interstate. Given the length of time the applicant and sponsor claim to have been together the Tribunal found it puzzling that as a couple they did not know much about each other.

22. A number of statutory declarations from friends and relatives of the applicant, were submitted including one from the same friend who signed the $8,000 loan document. The Tribunal found that the statutory declarations were written in a similar, perfunctory style. The Tribunal notes that no submissions were made by friends of the sponsor. At hearing the sponsor stated to the Tribunal that her friends and relatives were not supportive of the relationship.   

23. The applicant submitted to the Tribunal a series of undated pictures. These pictures showed the applicant and sponsor in a range of regular locations, such as at a house, shopping at the supermarket and loading groceries into a car. There was also a picture of them eating McDonald’s and at a domestic dining table, but no pictures in broader social situations. The Tribunal considers the photographs, while numerous and appearing to cover a broad timeframe, appear to be mainly contrived “selfies” and not a demonstration of them socially interacting as a couple and with third parties. 

24. The Tribunal asked the applicant how he and the sponsor plan and undertake joint social activities. The applicant informed the Tribunal that they go and visit his cousin, dine out occasionally together, but not with a group or at fancy restaurants due to limited finances. The applicant stated to the Tribunal that their most recent joint social activity together was on the Thursday before the hearing they went to pizza restaurant together and the night before the hearing ate at McDonald’s. The sponsor confirmed that the last social activity together was eating at the pizza restaurant and McDonald’s. 

25. Based on the limited evidence the applicant and sponsor were able to provide at hearing the Tribunal gives little weight to the evidence of a social relationship.

    Nature of persons' commitment to each other

26. The couple informed the Tribunal that they first met on 24 June 2014 through a mutual friend. The couple became engaged on 23 September 2014, that also being the sponsor’s birthday. On 22 March 2015 the couple married and the only people who attended the wedding was the applicant’s cousin and a mutual friend named Frank. The sponsor further added that the wedding was held at a registry office, in a house, and that she had no family or relatives at the ceremony. The couple informed the Tribunal that as a couple they only started living together from 22 February 2022 at a property in Rockbank before moving in early 2022 to a new address. Given the length of time the couple claim to have been married to each other and lived together, the Tribunal finds it puzzling as to the lack of evidence the couple have submitted to the Tribunal prior to the hearing and the oral evidence given at hearing. The couple have not submitted any photographical evidence of the wedding or of a celebration post the wedding ceremony.

27. The applicant informed the Tribunal that the degree of companionship and emotional support they draw from each other is through the ups and downs they have been going through in relation to the visa situation and that the sponsor is the only income earner in the relationship. The applicant said he was concerned about the hours of work being undertaken by the sponsor and said he would talk to her when she is tired or worried. The sponsor informed the Tribunal that the applicant listens to everything she has to say given that her long-term memory is not good due to her current medication.

28. The couple both informed the Tribunal that they see this relationship as a long-term one.

29. The couple appeared to be reasonably well known to each other; however, the Tribunal observed that there was little evidence of emotional support between the couple during the hearing.

30. At hearing the Tribunal found the couple to be quite distant from each other and they appeared to not genuinely know each other given the time in which they claim to have been committed to each other.

31. Based on the observations made by the Tribunal during the hearing and the limited oral evidence provided by the couple the Tribunal gives little weight to the nature of the persons’ commitment to each other.  

    Additional information

32. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on the Department file a s 376 certificate of the Act and that the Tribunal was satisfied that the certificate was valid. The Tribunal provided the applicant a copy of the certificate and explained to him why the Tribunal considered the certificate to be valid as it was dated, signed and that the files behind the certificate were relevant to this matter. The Tribunal explained to the applicant, that statement claimed the marriage is fake and fraudulent; that he paid money to the sponsor to get an Australian partner visa; that it is a Contract marriage; that he made a false statement regarding the marriage to the Department; that he has a wife (Kanwal Noreen) already who lives in Pakistan and that this marriage took place in 2014 and that he is still the husband of Kanwal Noreen; and that he will divorce the sponsor once he achieves permanent residency in Australia.  The Tribunal explained to the applicant why this information was relevant to the review. It explained to the applicant the consequences of the Tribunal relying on the information. The Tribunal confirmed with the applicant that he understood the information and how the information was relevant to the review, and the Tribunal advised the applicant that he could comment on or respond to or seek additional time to comment on or respond to the information. The applicant did not elect additional time be granted to him, and he chose to comment at the hearing. The applicant refuted the entirety of the adverse information put to him and said that he loves in wife. The applicant made no further comment regarding the accusations put to him. Based on the limited response from the applicant regarding the accusations put to him at the Tribunal place some weight on the accusations given the serious nature of them.

33. Post hearing the applicant made an email submission to the Tribunal with a number of attachments. The Tribunal considered the relevance of the attachments and notes that the majority of them had already been submitted in earlier submissions. Given this the Tribunal places little weight on the post hearing submission.

    Conclusion

34. Having considered all of the evidence the Tribunal is satisfied that applicant and sponsor are married to each other under a marriage that is valid for the purposes of this Act and therefore meet the requirements of s 5F(2)(a).

35. However, based on the evidence, the Tribunal is not satisfied that the couple meet the requirement of s 5F(2)(b), that being they have a mutual commitment to a shared life as wife and husband to the exclusion of all others; s 5F(2)(c) that the relationship between them is genuine and continuing; s 5F(2)(d) that they live together.

36. Therefore, the applicant does not meet cl 820.211(2)(a) and cl 820.221.

37. For the reasons above, the applicant does not satisfy the criteria for the granting of the visa.

    DECISION

38. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    M. Edgoose
    Member (Presiding Member)

    
    

    C. Cartwright
    Member

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (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).