SAYED RAHIM (Migration)

SAYED RAHIM (Migration) [2019] AATA 4324 (3 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Hamra Gul SAYED RAHIM
VISA APPLICANTS:  Mrs Hamida RAHMANI
Master Mir Ahmad RAHMANI
Miss Madina RAHMANI
Master Omran RAHMANI
Miss Zeba RAHMANI
CASE NUMBER:  1717243
DIBP REFERENCE(S):  BCC2016/2633629
MEMBER:Simone Burford
DATE:3 July 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211(2) of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations

Statement made on 03 July 2019 at 5:04pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – genuine long-term married relationship – joint social activities – review applicant providing financial support to visa applicant – companionship and emotional support – credible witness – mental health issues – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359AA
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cls 309.211(2), 309.221

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 July 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).
The first named visa applicant (the visa applicant) applied for the visa on 9 August 2016 on the basis of their relationship with their 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied that the review applicant and the visa applicant were in a genuine and on-going spousal relationship.
The review applicant appeared before the Tribunal on 21 June 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and Mr Faheem Mahmood, a friend of the review applicant.
The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing. The hearing was conducted with the assistance of an interpreter in the English and Afghan languages. At the commencement of the hearing Mr Mahmood indicated he would like the assistance of a Pakistani interpreter. However, as the Tribunal did not have notice of this request one was not available. Mr Mahmood indicated he was comfortable giving evidence in English. Mr Mahmood confidently gave evidence in English and the Tribunal had no difficulty understanding his evidence. Mr Mahmood appeared to understand the Tribunal’s questions without difficulty.
Mr Mahmood’s wife, Ms Mustafa, was also present at the hearing. At the commencement of the hearing she indicated she would be prepared to give evidence. However, as the Tribunal did not have notice of her intention to give evidence there was insufficient time to do so at the hearing. The Tribunal gave the applicant additional time to submit a further statutory declaration or statement from Ms Mustafa and one was provided following the hearing. The Tribunal accepted the evidence contained in the statutory declaration and did not regard it as necessary to question Ms Mahmood.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is the spouse or de facto partner of the sponsor as defined under s.5F and s.5CB of the Act.
Whether the parties are in a spouse or de facto relationship
Clause 309.211(2) and cl.309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.
‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3) of the Regulations, 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?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties provided a ‘Nikah Nama’ noting the marriage of the review applicant to the visa applicant in Peshawar, Pakistan on 10 April 2016. The marriage was registered on 3 May 2016. There is no information before the Tribunal to suggest this was not a valid marriage under local law. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a).
Are the other requirements for a spouse relationship met?
The Tribunal has before it the Department’s file relating to the visa applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, which was submitted by the review applicant with the application for review, and other material available to it including material submitted by the review applicant to the Tribunal including following the hearing.
The review applicant and the visa applicant both gave evidence at the hearing. The Tribunal questioned them at length about their relationship. The Tribunal took evidence regarding the development of their relationship, their relationship history, knowledge of each other’s background and family history, financial, social and household aspects of their relationship and the nature of their commitment to each other.
The Tribunal had some concerns regarding inconsistencies in the testimony of the review applicant and visa applicant. The basis for these concerns is outlined further below. These concerns were put to the review applicant at the hearing in accordance with s.359AA of the Act. The review applicant responded to the information at the hearing and was given additional time following the hearing to provide further responses. Written submissions and material was submitted following the hearing which addressed the information put to the review applicant.
The Tribunal expressed a concern at the hearing that there was little documentary evidence on the file to support the account of the relationship given by the parties particularly having regard to the length of time they claimed to have been in the relationship. The Tribunal discussed with the review applicant the fact that the delegate’s decision raised the issue of the lack of supporting evidence as a basis for refusing the visa and the need for the review applicant to give careful consideration as to whether he wished to submit any other evidence in support of the application before the Tribunal. The Tribunal gave the review applicant additional time following the second hearing to submit additional evidence. Some additional material was provided and this has been taken into account by the Tribunal in reaching its decision.
Relationship background
The visa applicant is 33-year-old Afghani national. She is currently living in Pakistan. The parties’ evidence was that she is living in Pakistan unlawfully. She has one previous marriage. She has three children and one step-child from that marriage. The oldest of the children, her step-daughter, is 17 years old. The children are the secondary applicants for the visa. The application indicates that her previous husband died of a heart attack in September 2014.
The review applicant is a 54-year-old Australian citizen. He was born in Afghanistan and migrated to Australia on a partner visa in 2007. He has been married twice previously. The application indicates his first wife died in a car accident in January 2000. He has three children from his first marriage. The visa application indicates that two of his children are deceased and one, a daughter, is married and is living in Pakistan. At the hearing he indicated that one of his children died in Afghanistan, he has lost contact with his other two children. He understands that his daughter had died but that his son may still be alive, however, he does not have contact with him or know where he is.
He married his second wife in April 2006 and was sponsored for the partner visa on 1 May 2006. He arrived in Australia in 2007 and the relationship ended on 20 July 2014. There were no children from that relationship. A copy of his Divorce Order dated 24 February 2016 was provided.
The parties claim to have met through the review applicant’s sister who was a friend of the visa applicant’s in Afghanistan. The visa applicant was living in Afghanistan until 2015.
The visa applicant indicated in her statement that she had told the review applicant’s sister that she was looking for a life partner and she found out about the review applicant. His sister had told the visa applicant that he was looking for a partner. The review applicant called the visa applicant and they started talking on the telephone. They claim to have made a mutual commitment to a shared life on 29 April 2015. They made a decision to meet in Pakistan and the visa applicant moved to Pakistan mid-2015 with her children. The review applicant arranged a rental home for her and the children through one of his contacts.
The review applicant visited the visa applicant in Pakistan in April 2016 where they met face-to-face. They decided to get married and celebrated the marriage on 10 April 2016. The marriage was registered on 3 May 2016. They lived together in Pakistan until the review applicant return to Australia on 16 May 2016.
They lodged the application for a partner visa on 9 August 2016 in the United Arab Emirates.
The review applicant returned to Pakistan for three weeks from December 2016 to January 2017 and again in October 2017 for around three weeks. The review applicant made a further trip to Afghanistan in May 2018 for around four weeks returning in June 2018.
Adverse material
As noted above, the Tribunal had some concerns regarding the testimony of the review applicant and visa applicant. These concerns were put to the review applicant at the hearing in accordance with s.359AA of the Act.
The particulars of the information were:
·The review applicant testified to the Tribunal that he suffers from depression and takes prescribed medication for this condition. However, when the visa applicant was asked by the Tribunal whether she was aware of any health conditions suffered by the review applicant she responded ‘no’.
·The review applicant testified to the Tribunal that one of his children was deceased. However, the visa applicant testified to the Tribunal that ‘all Hamra’s children are dead’.
·The review applicant testified to the Tribunal that he had two siblings, a sister and a deceased brother. However, when questioned about the review applicant’s siblings the visa applicant indicated that he had a sister and did not mention his brother.
·The review applicant testified that the visa applicant had moved buildings in Pakistan. However, the visa applicant indicated she had been continuing to live at the same address.
The Tribunal adjourned the hearing for the review applicant to discuss the information and his responses with his representative. The Tribunal indicated to the review applicant that he could respond at the hearing or in writing following the hearing.
Following the adjournment the review applicant indicated he would respond at the hearing. He did so. The Tribunal allowed a further 14 days for any additional comment or response to the information to be submitted by the applicant in writing. Further written submissions and additional material was received from the applicant’s representative.
The applicant claimed his wife was aware of his depression but due to her limited education she her cultural background she has a limited understanding of mental health issues. He submitted that because he has no contact with his children and do not know where they are he told his wife they were dead. His representative submitted that in the applicant’s culture previous relationships are not generally discussed with a new wife and the visa applicant has not been inquisitive about such matters. In relation to the review applicant’s siblings, the visa applicant was referring to the review applicant’s living relatives. With regard to the families address in Pakistan the review applicant submitted that the family had originally lived on the ground floor but then moved to the second floor, therefore while they had moved they were still at the same address.
The Tribunal has considered the review applicant’s responses to the material put to him at the hearing in the context of all the material before it in reaching a decision.
At the hearing the Tribunal also put to the review applicant and the visa applicant a number of concerns raised in the delegate’s decision. These included that:
·The wedding photographs provided do not depict guests but the visa applicant claimed twenty guests attended the wedding. In response to this issue the review applicant claimed that women in Pakistan are not allowed to be photographed which is why the guests are not included in the photographs. This was broadly consistent with the visa applicant who claimed that Pakistani’s do not like to be photographed.
·During a telephone interview on 20 March 2017 by the Department, the visa applicant was unable to recall the name of the review applicant’s sister who she said she knew well and introduced them. The review applicant indicated that the visa applicant had not provided the name because she was worried because they were deporting people from Pakistan and she didn’t realise this was her interview. The visa applicant stated she was worried about Afghanis being deported though she confirmed the interviewer had identified themselves as calling on behalf of the Australian authorities.
·During the telephone interview the visa applicant advised that the review applicant was only married once and she was not aware if he had children from this marriage. However, records indicated the review applicant had been married twice and had three children from his first relationship. In response to this issue the review applicant stated that ‘maybe she forgot’. The visa applicant indicated the review applicant had one wife who had died and one divorced. She did not offer any explanation for the inconsistency. She said she knew he had children but ‘there had been a flood’.
·In the current application the review applicant indicated his first wife was deceased but in his previous application for his own partner visa he claimed he was divorced from that wife. At the hearing the review applicant stated that the first answer was wrong. When asked why the wrong information had been provided he said the person who wrote it put it wrong. When asked who put that information he said the ‘Embassy of Australian in Iran’ and that they ‘spoke a different language than mine’. When the Tribunal sought clarification he said it was not the Embassy but an organisation who had filled in the form.
·Concerns were raised regarding the secondary applicant who is the step-child of the visa applicant as there is only a third party declaration in relation to the father’s death certificate and no evidence of the death of the mother. The review applicant indicated that Afghanistan is a war country and there is no paperwork.
The Tribunal has considered the review applicant’s and visa applicant’s responses to the material put at the hearing in the context of all the material before it in reaching a decision.
The review applicant’s mental health
At the hearing the applicant indicated he suffered from depression and had forgotten to take his medication that day. The review applicant provided a copy of a referral letter from Dr Paterson, Ellen Health, Fremantle to Armadale Mental Health Services dated 3 April 2018. The letter indicates the review applicant suffers from ‘post traumatic stress, Anxiety with depression, Panic attacks’. It indicates he has ‘a long history with depression’ and takes medication for this. The letter indicates his depression has worsened as a result of his wife’s visa refusal.
The Tribunal asked the review applicant if he was feeling well enough to give evidence at the hearing. He indicated that he was. The Tribunal indicated it wanted to make sure the review applicant felt up to giving evidence on that day and he indicated he was able to give evidence. The Tribunal formed the view that the review applicant was able to participate in the hearing and understand and respond to the questions being put to him.
At the close of the hearing the applicant’s representatives made submissions that some of the review applicant’s responses may have been impacted by his mental health issues. The Tribunal indicated that it understood the review applicant’s mental condition, however neither the review applicant nor his representative raised an issue during evidence regarding his understanding of the question or his ability to participate in in the hearing.
Following the hearing the review applicant submitted a further letter from Dr Paterson at Ellen Health dated 9 July 2018. The letter indicates that the applicant has been a patient of the practice intermittently since 2010 and takes medication. The letter indicates:
He has long-standing anxiety and depression, predating his time at this practice. Part of his depression involves poor memory and concentration especially if he misses or delays taking his medication.
The review applicant did indicate several times during evidence that he had a poor memory. The Tribunal accepts that his mental condition may impact his memory and attempted to make accommodation for this, both in taking evidence from the review applicant and in assessing his evidence in considering the application. For example, during the hearing, where the review applicant failed to recall events or details, or gave inconsistent answers, the Tribunal attempted to explore these issues with him in a manner which would give him an opportunity to recall details or to recognise and correct inconsistencies. In assessing the evidence the Tribunal has given the review applicant the benefit of the doubt where he failed to remember minor details or dates.
Financial aspects

The Tribunal has had regard to the evidence provided relating to the financial aspects of the relationship, including joint ownership of real estate or other major assets and any joint liabilities, the extent of any pooling of financial resources, especially in relation to major financial commitments, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of the day-to-day household expenses.
The parties provided financial information which reflects their financial circumstances.
The parties do not have any significant joint assets or liabilities and there is no evidence that either person in the relationship owes any legal obligation in respect of the other.
The review applicant works at a fresh food market in Australia.
The visa applicant rents a home in Pakistan. She indicated this was arranged by the review applicant and that he pays the rent via money transfer. Mr Mahmood’s evidence was that the lease is in his brother’s name in Pakistan as the parties are unable to rent a property in Pakistan as they do not hold Pakistani identification cards. The Tribunal accepts Mr Mahmood’s evidence.
The review applicant testified that the parties do not pool financial resources but that he attempts to contribute to day-to-day expenses through financial support to the applicant.
The parties indicated that the review applicant provides financial assistance to the visa applicant. Documents provided to the Department and Tribunal included records for money transfers from the review applicant to Mr Badar Mehmood in Pakistan. The review applicant claimed to have sent money on a monthly basis since the visa applicant moved to Pakistan (in 2015). Receipts for money transfers for February 2015, May 2016, August 2016, September 2016, November 2016, January 2017, March 2017, July 2017, August 2017, September 2017, December 2017, plus one additional 2017 transfer with an unclear date, June 2018, September 2018, October 2018, November 2018 and January 2019. Ms Leena Mustafa, wife of the review applicant’s friend Mr Faheem Mahmood, provided a statutory declaration indicating she had taken AUD700 cash from the review applicant to the visa applicant on a visit to Pakistan in July 2015.
The amounts of the transfers vary. Several have been for amounts in excess of AUD1,000, others for lesser amounts around AUD200. The latest for receipts have each been for around AUD600.
The Tribunal accepts the transfer receipts and statement of Ms Mustafa as evidence that the review applicant is providing financial support to the visa applicant via Mr Mahmood. The review applicant and visa applicant indicate this support is used for rent and living expenses for the visa applicant and her children.
There is limited evidence of the parties combining financial resources. The Tribunal accepts that the review applicant has provided financial assistance to the visa applicant and her family evidenced by the money transfer receipts. The parties had no evidence of sharing living costs and financial resources when together in Pakistan or otherwise.
The Tribunal notes that the parties reside in separate countries and recognises that this makes the pooling of resources and sharing of day-to-day expenses difficult. Having regard to the circumstances of the parties living separately during most of the relationship the Tribunal does not place significant weight on this consideration.
Nature of the household
The Tribunal has had regard to the evidence as to the nature of the household including joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of the responsibility for housework.
The parties have no children together. The parties provided testimony that they have spent up to one month per visit living together at the home the visa applicant shares with the secondary applicants.
The parties claim that the review applicant shares responsibility for caring for the children when in Pakistan. Several photographs were submitted of the review applicant with the children. The parties provide a ‘To whom it may concern’ letter dated 15 May 2018 signed by the Principal of ‘Kids Islamic Academy’ stating that three of the children attend the school and the review applicant is their step-father. The letter states it is provided at the request of both parties. As the letter does not indicate that the Principal has ever met the review applicant or has any direct knowledge of the parties’ relationship the Tribunal places limited weight on the letter as evidence that the review applicant is involved in the care of the children. However, the Tribunal places weight on the letter as evidence of social recognition of the relationship.
The Tribunal notes that at the hearing the review applicant could not recall the ages of the children. He said he did not know. He was asked to estimate their ages and said he did not know, ‘thirteen, fourteen’. He was able to state their names. The Tribunal notes that he has seen the children two weeks prior to giving evidence and claimed to have spent a month living with them on that visit. The review applicant claimed to have spent time taking the children out and caring for them at home during four visits to Pakistan.
The review applicant’s representative submitted that the applicant’s poor memory and the translation to the Islamic calendar impacted the review applicant’s ability to recall the ages of the children. The Tribunal notes that the visa applicant’s evidence was that the children were 17, 13, 12 and 4 years old at the time of the hearing. While the Tribunal would not expect the review applicant to necessarily know the children’s birthdates, it is reasonable to expect that a step-parent who has been involved in the children’s lives for several years and has lived with and cared for them on four occasions would be able to estimate their ages within a range with general accuracy. The Tribunal was concerned with this omission. However, in light of evidence regarding the applicant’s memory challenges and his difficulty in translating the children’s ages the Tribunal does not place significant weight on this.
Tribunal finds on the evidence that the while the visa applicant has primary care responsibilities for the children the review applicant is providing financial support for the care of the visa applicant’s children.
The visa applicant’s statement provided to the Department (‘History of Relationship with Hamra’) claims that the parties live together in Pakistan. She indicates they went out locally in Peshawar three times. She states that they shared domestic duties. She cooked and washed dishes and clothes for the review applicant. According to the review applicant when he is visiting Pakistan the parties and the children attend to housework, shopping and visit restaurants and parks. He indicated that he transfers money on a monthly basis for household expenditures and the children’s school.
As they have not lived together in Pakistan for longer than a month at a time the parties have had limited opportunity to share their living arrangements. The Tribunal accepts they have not been able to establish a permanent joint household. Given their circumstances the Tribunal does not place significant weight on their current lack of a shared household.
The Tribunal finds on the evidence that the nature of the parties’ household is such that would indicate a genuine married relationship at the time of application and at the time of decision.
Social aspects of the relationship
The Tribunal has had regard to the evidence provided as to whether the parties represented themselves to others as being married to each other, the opinion of their friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities.
The parties have provided limited supporting material of the social aspects of the relationship. The parties provided copies of photographs to the Department and Tribunal. Most of these show the review applicant and the visa applicant together. Several show the parties with the visa applicant’s children. There are also formal photographs which appear to be of the parties’ wedding. These show the parties together and with the visa applicant’s children and one other person who is not identified. Other photographs show the parties with the visa applicant’s children in a number of settings. The Tribunal accepts the photographs provide evidence that the review applicant has met and spent time with the children and offer some evidence of joint social activity during the course of the relationship.
The parties submitted a statement from Badar Mehmood, a friend of the review applicant, dated 15 May 2018. He states he has known the review applicant for 10 years and met the visa applicant in 2015. He attests to the genuineness of the relationship and states that the review applicant rents a part of his property in Pakistan where the visa applicant and her children live. He states that he has witnessed the parties living together in Pakistan and sharing all household responsibilities. He also states that the applicant transfers money to him as the visa applicant is a refugee and does not have a bank account. He states that he then gives the money to the visa applicant.
Mr Faheem Mahmood gave evidence at the hearing. The parties also submitted a statement from Faheem Mahmood dated 21 July 2016. Mr Mahmood indicated that he was an old family friend of the review applicant’s who had been a good friend of his father. The review applicant introduced Mr Mahmood to his wife. Mr Mahmood indicated that he met the visa applicant in Pakistan when he went to his wife’s brother’s wedding. He says that the visa applicant attended that wedding but he can’t remember when it was. He indicated that he saw them together personally, that they have a good relationship and go lots of places together. He also testified that they live together when in Pakistan. He indicated that people are sorry for the review applicant who is regarded as an honest man and who does not have anyone to care for him in Australia in the absence of the visa applicant. He testified that the review applicant would talk to him regularly about missing his wife and his plans for his family. He indicated that his brother rents the house on behalf of the couple as they are unable to rent a house in Pakistan due to their visa status. He attests his belief that the relationship is genuine and that they will live together if the application is successful. He stated that the review applicant financially supports the visa applicant through his brother in Pakistan. The review applicant indicated he was in Pakistan at same time as Mr Mahmood in 2017 and he and his wife saw him there. He did not know the names of friends or neighbours though the parties submitted that they do not socialise frequently with Pakistanis as they tend have limited social acceptance of Afghani refugees.
The parties also provided an undated statement from Leena Mustafa. That statement says that in 2015 Ms Mustafa took AUD700 to Pakistan for the review applicant to pass to his wife, the visa applicant. She states that as far as she was aware the funds were financial support from the review applicant to the visa applicant. The Tribunal notes Ms Mustafa is the wife of Mr Mahmood, attended the hearing and was prepared to give evidence.
Minh Tran, a friend of the review applicant, provide a statement dated 28 July 2016 stating at the time the parties had been in a relationship for about one year. Mr Tran notes that he works with the review applicant and believes that the relationship is genuine. He states that the review applicant tells him that his misses his wife and that he has witnessed them having contact over the phone.
The Tribunal places weight on the evidence of the third parties. The Tribunal regarded Mr Faheem Mahmood as a credible witness who was concerned for the welfare of the review applicant. Mr Mahmood has spent time with the visa applicant and the review applicant as a married couple in a social and domestic setting. As such while the Tribunal accepts Mr Mahmood evidence in support of the relationship.
The parties testified that the visa applicant has few friends in Pakistan due to her visa status and the fact that Pakistanis do not socialise with Afghanis. However, the Tribunal notes that they stated that the people who attended their wedding were Pakistani neighbours. The only evidence from third parties who know the visa applicant and review applicant in Pakistan is from Mr Badar Mehmood. His evidence is in similar terms to Mr Faheem Mahmood.
Considering all the information provided to the Tribunal finds on the evidence available that the social aspects of the relationship are consistent with a genuine and continuing married relationship at the time of application and at the time of decision.
Nature of the parties’ commitment
The Tribunal has had regard to the evidence provided in relation to the nature of the parties’ commitment to one another including the duration of the relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other, and whether they see the relationship as long-term.
The parties claim to have been married since April 2016. They claim to have been in a relationship since sometime in 2015. The Tribunal acknowledges the parties have known each other for a significant period and have maintained some contact during that period. Including the visit where the parties met in person in 2016 the review applicant has made four trips to Pakistan. The visa applicant has not travelled to Australia though the Tribunal accepts it would likely be difficult for her to do so for financial reasons and to obtain a visa for travel to Australia. The parties claim to have spent around four months in the same country.
The parties claim to have been in regular contact while apart. They provided phone records from Amaysim from 30 June 2016 to 20 November 2016 and 1 Jan 2017 to 9 May 2018. They provided receipts for phone cards they claim were purchased for this purpose but as the cards do not indicate what the calls were used for the Tribunal places little weight on them as evidence of communication between the parties. The parties also provided call records from Amaysim Australia Limited evidencing call history from January 2017 to April 2018. The Tribunal accepts these as evidence of some communication during those periods. The Tribunal accepts the call records as evidence of communication between the parties.
While the review applicant’s lack of recollection of the details of the relationship caused concerns the Tribunal accepts his lack of recall can, at least in part, be attributed to mental health issues.
While there was a lack of evidence regarding social recognition of the relationship in Pakistan and among the parties’ respective families the Tribunal accepts their family circles are very limited due to their personal circumstances. The parties provided third party statements in support of the relationship including for parties who have spent time with the couple together in Pakistan. The parties claimed to have been in a committed relationship since 2015 and to have plans to build a life together in Australia. These claims were supported by the evidence of the third party witnesses.
The parties provided testimony as to their commitment to the relationship and their future plans should the visa be granted. The Tribunal accepts that they provide companionship and emotional support to one another and view the relationship as long-term. The parties provided telephone records which evidence contact between the parties.
The Tribunal accepts that while the parties have spent limited time living together in the same country the relationship is long-standing. The Tribunal found their evidence at the hearing consistent with an ongoing commitment to the relationship.
The Tribunal finds on the evidence that the nature of the parties’ commitment to each other demonstrates a genuine married relationship at the time the application was made and at the time of this decision.
Spousal relationship findings
The Tribunal had some concerns regarding inconsistencies in the parties’ evidence. However, having considered all the evidence before it and the explanations for those inconsistencies provided to the Tribunal, the Tribunal is satisfied that at the time of the application and at the time of the decision the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others. The Tribunal is satisfied that the relationship between the parties is genuine and continuing and that they live together or not separately and apart on a permanent basis.
Having considered all of the circumstances of the relationship including the evidence relating to the financial and social aspects of the relationship, the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3), the Tribunal is satisfied that the requirements of s.5F of the Act are met at the time the visa application was made and at the time of this decision.
Therefore the visa applicant meets cl.309.211(2) and cl.309.221.
In reaching its conclusions, the Tribunal observes there is a two-stage process before a permanent visa is granted in the partner migration stream. Therefore, there will be a further assessment of the relationship at the permanent visa stage and the matter of the genuineness of the relationship and commitment of the parties will be considered again, on the facts that exist at that time.
For present application, having regard to the totality of the evidence before it, the Tribunal is satisfied that at the time of the application and time of the decision the visa applicant meets the requirements of s.5F of the Act.
In relation to the secondary applicants, the Tribunal remits the applications for the visas to the Minister to consider the remaining criteria for the grant of the visa.
Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for Subclass 309 visas.
DECISION
The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl.309.211(2) of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations.
Simone Burford
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).

[2019] AATA 4324

3 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice