Shikeeb (Migration)

[2018] AATA 1531

Shikeeb (Migration) [2018] AATA 1531 (24 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmad Shikeeb

CASE NUMBER:  1601419

DIBP REFERENCE(S):  OSF2013019841

MEMBER:Nicholas McGowan

DATE:24 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Spouse) visa:

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cl.100.221(2) of Schedule 2 to the Regulations.

Statement made on 24 May 2018 at 8:19am

CATCHWORDS
Migration – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – Whether there is a genuine spousal relationship – Third-party claim on the Department file – “Significant evidence of relationship” – Parties live together – Visited family in Afghanistan – Mutual commitment to a shared life as husband and wife – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15A Schedule 2 cl 100.221

WRITTEN STATEMENT OF DECISION AND REASONS

1. The visa applicant applied for the visa on 19 February 2013.

2. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 January 2016 to refuse to grant the visa applicant that Partner (Migrant) (Class BC) Subclass 100 visa application (under s.65 of the Migration Act 1958 (the Act)).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

4. The applicant and his sponsor appeared before the Tribunal on 23 May 2018 to give evidence and present arguments at a public hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the parties are in a genuine and continuing spouse relationship, as required by cl.100.221(2).

   Whether the parties are in a ‘spouse’ relationship

6. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, amongst other things, that at the time of this decision, the applicant is the spouse of the ‘sponsoring spouse’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring spouse’ is the person who was specified as the applicant’s spouse or intended spouse in the related Subclass 309 application. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring spouse’ within the meaning of that term.

7. ‘Spouse’ is defined in r.1.15A of the Regulations and provides that a person is the spouse of another where the two persons are either in a married or de facto relationship. Persons are in a de facto relationship if they are not validly married to each other. 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 husband and wife 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: r.1.15A(1A). In forming an opinion as to 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 r.1.15A(3), which is extracted in the attachment to this decision.

   Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence (folio 151-153 of the Department’s file), the parties were married to each other under a marriage that is valid for the purposes of the Act as required by r.1.15A(1A)(a).

   Are the other requirements for a spousal relationship met?

9. The Tribunal has considered all the evidence before it (in particular the parties’ oral evidence at the public hearing which the Tribunal found spontaneous, credible and therefore reliable.

10. The Tribunal can see from the documentation and statements from the sponsor and applicant that they are known to each other through their families. They are both Afghan by birth. They became better acquainted after the death of the applicant’s brother, who was also the sponsor’s fiancé. From all the available evidence, including numerous photographs, and from the parties and their own oral evidence and other documents on the Department’s file, there is widespread recognition of the applicant and sponsor’s relationship. They claim to be living together and renting the sponsor’s brother’s house. They claim to be saving for their own home. They both work. They have both returned several times to Afghanistan to visit family. They had previously met each other in India (prior to the applicant’s arrival in Australia). They have also visited Sydney and other locations for social occasions and others gatherings. According to the Department’s own finding (folio 146) the couple previously provided “significant evidence of relationship”.

11. The Tribunal considered a third-party claim in respect of the parties’ relationship contained in the Department’s file, though not shared with the applicant or his sponsor previously. It is not clear to the Tribunal when this claim was made (and/or) actually received as two dates appear, namely 21 January 2016 and 2014. The claims contained within were canvassed with the applicant and his sponsor during the public hearing. There appear some aspects of these claims which do contain a degree of specificity consistent with a level of knowledge of the parties (if not the sponsor’s family and their past claims), though these aspects relate more to the sponsor’s family and their historic migration path to Australia. Ultimately, the weight of evidence which speaks in favour of the applicant’s and sponsor’s claim they meet the criteria outweigh the other unsubstantiated claims in this case.

12. Having had regard to all the evidence before it the Tribunal is, on balance, satisfied that the relationship between the applicant and sponsor is as they claim - a spousal relationship in which the parties provide one another with companionship, emotional and practical support, and one in which they see their relationship as long-term. It follows, that the Tribunal finds that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and the relationship between them is genuine and continuing; and they live together; and do not live separately and apart on a permanent basis: r.1.15A(1A). The Tribunal is satisfied the requirements of reg.1.15A are met. Therefore, the Tribunal is satisfied the parties meet cl.100.221(2)(b).

13. The Tribunal is satisfied that the applicant meets cl.100.221(2)(a) and (c) as the applicant is the holder of a Subclass 309 (Spouse (Provisional) visa granted 9 July 2014, and more than two years has passed since the application was made (Department file: folio 24), and the applicant continues to be sponsored by his sponsoring spouse.

14. Given all the above, the Tribunal finds that the applicant meets cl.100.221(2).

15. Accordingly, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 100 visa.

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