Shamsi (Migration)

[2023] AATA 4725

Shamsi (Migration) [2023] AATA 4725 (7 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Ali Faran Mehdi Shamsi

REPRESENTATIVE:  Ms Hawli Rayane

CASE NUMBER:  1908931

HOME AFFAIRS REFERENCE(S):          BCC2018/1164539

MEMBER:David Barker

DATE:7 December 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(a) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 07 December 2023 at 2:24pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine spousal relationship – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

CASES
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 visa applicant (the applicant) applied for the visa on 12 March 2018 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 applicant did not satisfy 820.211 because they were not satisfied the evidence before them demonstrated that the applicant is a spouse or de facto partner of the sponsor, as defined under s 5F and s 5CB of the Act.

4. The applicant appeared before the Tribunal on 7 December 2023 to give evidence and present arguments. The Tribunal also received oral evidence from his wife (the sponsor).

5. The applicant was represented in relation to the review.

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

   BACKGROUND

7. The applicant is a national of Pakistan and is 30 years of age. He first arrived in Australia in 2014 on a Student visa, the cessation of which was followed by the visa application which is the focus of the current review.

8. The sponsor was born in Kuwait and is 31 years old. She came to Australia in 2001 and is an Australian citizen by grant in 2009.

9. Information provided in association with the visa and review application indicates that the applicant and sponsor (hereafter when discussed jointly referred to as the parties) first met on 10 May 2016 at Imam Hassan Centre, Annangrove NSW 2156. They were introduced by a mutual friend and subsequently committed to a shared life together to the exclusion of others, celebrating their engagement in the presence of friends and families on 8 July 2016.

10. The parties subsequently married in  Pakistan on 27 March 2017. Since that time they have had two children, a son born in May 2020 at Canterbury hospital,  Campsie NSW and a daughter, born recently in November 2023, at Canterbury hospital,  Campsie NSW.

11. Documents that were provided to the Department in support of the Partner visa application included:

    • Marriage certificate;
    • Photographs
    • Form 888 statutory declarations completed by third parties.

12. The delegate decision record, a copy of which was provided with the review application, indicates the delegate considered there to be insufficient evidence provided in support of the visa application to be satisfied the parties were in an ongoing, genuine spousal relationship.

13. Prior to the hearing the Tribunal received further documentary evidence including:

    • Representative submissions dated 30 November 2023;
    • Marriage Registration Certificate – Government of Punjab dated 27 March 2017;
    • Applicant and sponsor statutory declarations dated 23 April 2023, 1 December 2023;
    • Birth certificate for the parties’ first born children and documentation pertaining to the birth of their second child;
    • Bank transaction statements, taxation records, utility accounts and other financial evidence;
    • Rental tenancy agreements and other documents pertaining to rental accommodation in Liverpool, NSW;
    • Form 888 statutory declarations;
    • Travel records;
    • Photographs.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant and sponsor were in a genuine spousal relationship at the time of application and continue to be in a genuine spousal relationship at the time of this decision.

15. In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files, as well as the oral evidence provided by the applicant and sponsor at hearing. The Tribunal found that the applicant and sponsor provided their evidence at hearing in a coherent, plausible and reasonable manner. The Tribunal is satisfied that the oral evidence at hearing is consistent with the documentary evidence available for the Tribunal’s consideration. The Tribunal is satisfied that the applicant and sponsor are a reliable source of information with regard to their relationship and can be regarded as providing credible evidence to the Tribunal.

    Whether the parties are in a spouse or de facto relationship

16. 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.

17. ‘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?

18. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

19. The Department file contain a copy of a Marriage Registration Certificate issued by the Government of Punjab, Pakistan which states the parties registered their marriage in Rawalpindi, Pakistan on 17 March 2017. There is no evidence which would suggest this document is not genuine.

20. 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?

    Financial aspects of the relationship

21. The Tribunal has considered the financial aspects of the relationship, including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; and any sharing of day-to-day household expenses.

22. The parties gave evidence that they do not hold any shared assets of any note, but have jointly purchased furniture they for their rental accommodation and furniture and equipment required to care for their two young children.

23. The parties have no shared liabilities or legal obligations with respect to each other.

24. As to the basis on which the parties pool their financial resources and meet their everyday expenses. They operate a joint account with the Commonwealth Bank (CBA)  and have provided transaction statements which show evidence of them both transferring funds into this account and expenditure at outlets such as supermarkets, restaurants, butchers and petrol stations. The parties gave evidence that they both were in paid employment up until the recent birth of their second child. They indicated that their employment income went into individual bank accounts they operate and they transfer funds into their joint CBA account as required to meet some regular expenses. They have  traditionally met expenses such as utility bills, rent, phone and internet accounts from their respective individual  savings accounts, with the applicant taking responsibility for the payment of all of these expenses since earlier in 2023. The transaction records filed with the Tribunal from CBA and Westpac accounts operated by the parties jointly and separately support the parties claims with respect to this factor.

25. The parties contend that their plan is for the sponsor to be a stay at home parent for a period of time which results in the applicant being, in conjunction with family payments from Centrelink, the sole source of income in their household at the present time.

26. In considering the financial aspects of the parties’ relationship, I note that there is  considerably more evidence, in the form of banking and other financial records, before the Tribunal, than was available to the delegate at the time of their decision. I am satisfied the parties claims at hearing about this factor are consistent with the documentary evidence that they have provided.

27. The Tribunal finds that the financial aspects of the relationship support a finding that the parties have a mutual commitment to a shared life together. The Tribunal has given weight to this aspect of the parties’ relationship.

    The nature of the household

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

29. The parties share joint responsibility for the care and support of their two children, born May 2020 and November 2023. The Tribunal has given weight to this factor.

30. As to their living arrangements, the parties have given  a coherent and plausible explanation for their residing  in the sponsor’s family home in Roselands, NSW following their return to Australia in March 2017 after their marriage in Pakistan.  The Tribunal accepts this claim and that they then, in April 2020 moving to  and set up their own household in privately rented accommodation in Liverpool. The parties have provided documentary evidence of their ongoing tenancy at the Liverpool address.

31. With regard to the sharing of housework, the parties gave consistent evidence that they share household tasks and the care of their children and that the applicant has taken on a significant portion of these roles in response to the sponsor’s health problems during 2023.

32. In considering the nature of the parties’ household arrangements, the Tribunal is satisfied the applicant and sponsor gave plausible accounts of their living arrangements. The Tribunal is satisfied that the nature of the parties’ household arrangements supports a finding that they have a mutual commitment to a shared life together. The Tribunal has given weight to this aspect of the parties’ relationship.

    The social aspects of the relationship

33. The Tribunal has considered the social aspects of the relationship, including whether the parties represent themselves to other people as being in a de facto relationship with each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

34. The evidence provided by witnesses, through declarations provided at the time of application and at the present time supports the claim that the parties present to family and friends as a couple in a committed relationship.

35. The Tribunal has reviewed photographs and is satisfied these show the parties together in the company of other people in a manner which is consistent with their representation to these other people as a couple.

36. The Tribunal is satisfied the available evidence indicates the parties present as a couple in a spousal relationship to the relevant authorities in Pakistan, and to entities in Australia such as employers, health services and the Australian Taxation Office.

37. The Tribunal finds that the parties represent themselves as a couple in a genuine and continuing relationship and that is recognised by their friends and family. The Tribunal is satisfied that they participate in shared social activities.

38. The Tribunal finds the social aspects of the relationship support a finding that the parties are in a genuine and continuing relationship and have a mutual commitment to a shared life together to the exclusion of all others.

    The nature of the persons’ commitment to each other

39. The Tribunal has considered the nature of persons' commitment to each other, 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.

40. The parties gave consistent, plausible and credible evidence as to their commitment to each other and their children. The Tribunal accepts that the parties met in May 2016 and  shortly thereafter commenced a relationship. The Tribunal accepts that the parties have not lived separately and apart since their marriage in March 2017. The Tribunal finds that the relationship between the applicant and sponsor can appropriately regarded as long term, with well over six years now passing since their marriage. The Tribunal finds the parties both view their relationship as long term and has given weight to this factor and as well the duration of both the relationship and the period in which the parties have lived together.

41. The Tribunal is satisfied the parties share responsibility for the care and support of their children and that the applicant is a source of support to the sponsor in relation to her health problems and her general life aspirations.

42. The Tribunal is satisfied, both through their presentation at hearing and evidence filed with the Tribunal that the parties provide emotional support and companionship to each other and that their relationship and their children are central features of their lived experience.

43. The photographs provided with the review application include those in which the parties are together, without the company of other people and those that show them with family and other people in social contexts. The Tribunal is satisfied they show the applicant and sponsor at ease in each other’s company. The Tribunal has given positive weight to this factor.

44. The Tribunal is satisfied that the evidence supports a finding that the parties have a mutual commitment to a shared life together to the exclusion of all others. The Tribunal is satisfied that their relationship is genuine and continuing.

    Conclusions on spouse criteria

45. Having regard to all the circumstances of this relationship, the Tribunal is satisfied that the applicant and his sponsor  married in March 2017 and that they  were at the time of application and are at the time of this decision in a genuine and continuing spousal relationship, that they have a mutual commitment to a shared life to the exclusion of all others, and that they live together, or not separately and apart, on a permanent basis.

46. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a genuine and continuing spousal relationship.

47. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.

48. Therefore, the applicant meets cl 820.211(2)(a) and 820.221(1)(a).

49. The Tribunal is satisfied that the applicant was at the time of application and at the present time sponsored by his spouse. The applicant’s sponsor has turned 18 years of age and therefore satisfies the criteria in cl.820.211(2)(c). At the time of application, the applicant held a substantive visa and so the criteria in cl.820.211(2)(d) is not relevant.

50. Therefore the applicant meets cl 820.221.

51. 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 820 visa.

    DECISION

52. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(a) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations]

    David Barker
    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).