Shujaat (Migration)

[2023] AATA 3378

Shujaat (Migration) [2023] AATA 3378 (2 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rana Shujaat

CASE NUMBER:  1902453

HOME AFFAIRS REFERENCE(S):          BCC2014/2300880

MEMBER:Anne Grant

DATE:2 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·subclauses 801.221(2)(b), 801.221(2)(c) and 801.221(2)(d) of Schedule 2 to the Regulations.

Statement made on 02 May 2023 at 1:51pm

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – parties are validly married – extensive evidence of their financial relationship – parties are in a genuine and continuing relationship – child from the relationship – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65, 359, 376
Migration Regulations 1994, r 1.15, Schedule 2, cl 801.221

CASES
He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 on 16 January 2019 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 12 September 2014 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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 cl 801.221 because they were not satisfied that the visa applicant and sponsor were spouses at the time of making the decision. 

4. The applicant appeared before the Tribunal on 26 April 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and the sponsor’s brother, Saif Shahid.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The visa application was lodged on 12 September 2014.  At the time of application, the visa applicant and sponsor provided the following documents to the Department in support of their application: 

   ·Visa applicant’s birth certificate issued by the Government of Punjab Pakistan, showing he was born on [date] in the district of Multan;

   ·Visa applicant’s Pakistan passport;

   ·Visa applicant’s divorce certificate issued by the Government of Punjab Pakistan, showing he was divorced on 10 February 2014 and the mode of divorce was by ‘Talaq’;

   ·Sponsor’s birth certificate issued by the Government of Punjab Pakistan, showing she was born on [date] in the district of Lahore;

   ·Sponsor’s Certificate of Australian Citizenship;

   ·Witness statutory declaration from Arab Sultan Rana, visa applicant’s uncle who also knows the sponsor’s sister from school, dated 12 September 2014, in support of the relationship;

   ·Witness statutory declaration from Fatima Shahid, visa applicant’s sister, dated 12 September 2014, in support of the relationship in which she states ‘Yes it is a genuine relationship, they both liked each other and both families organised and arranged marriage.’

   ·Joint relationship statement, dated 12 September 2014;

   ·Ceremonial Australian marriage certificate, showing both parties married in Broadmeadows in Victoria 3047;

   ·Visa applicant’s Victoria driver licence with an expiry date of 15 May 2017, listing his residential [Address 1];

   ·Family registration certificate issued by the Government of Pakistan, showing visa applicant’s family composition;

   ·Witness statutory declaration from Rana Sikander, known to the visa applicant for 20 years, dated 22 October 2016, in support of the relationship;

   ·Witness statutory declaration from Mohammed Shahid Humayun, sponsor’s father, dated 2 November 2016, in support of the relationship and outlining the living arrangements at their home;

   ·Witness statutory declaration from Ajaz Hussain, visa applicant’s friend, dated 25 September 2016, in support of the relationship;

   ·Joint relationship statement, dated 28 October 2016;

   ·Visa applicant’s telephone bill, listing the [Address 1], for the period of September 2016;

   ·Photographs of both parties, and both parties with family for the period of October 2014 to September 2016;

   ·Visa applicant’s Australian national police certificate, dated 3 November 2016, showing no criminal record;

   ·Visa applicant’s Pakistan police character certificate, dated 28 February 2017, showing no criminal record;

   ·Sponsor’s relationship statement, addressing the various criteria of the visa, dated 3 April 2018;

   ·Witness statutory declaration from Ajaz Hussain, the visa applicant’s friend, dated 27 October 2018, in support of the relationship.  Mr Hussain states that he met the sponsor at the wedding and has since then his family have become close and they socialise with them often;

   ·Photographs of the sponsor meeting the visa applicant’s mother and other family members in Pakistan in October 2017.

   ·Photographs of both parties, depicting their everyday life in 2018;

   ·Various letters and documents from Victorian Police, Vic Roads and Department of Human services and others addressed to the visa applicant at [Address 1], dated between 2017 and 2018;

   ·Witness statutory declaration from Michael Bryan Stikovic, the visa applicant’s manager, dated 29 October 2018, in support of the relationship.  Mr Stikovic states that there have been several occasions where they have had discussions about the difficulties of marriage, and also notes that the visa applicant often has lunch with his wife during work hours;

   ·Witness statutory declaration from Ali Haider, the visa applicant’s family friend, dated 29 October 2018, in support of the relationship;

   ·Witness statutory declaration from Arbab Sultan Rana, the visa applicant’s uncle, dated 31 October 2018, in support of the relationship;

   ·Witness statutory declaration from Rana Sikander, the visa applicant’s cousin, dated 29 October 2018, in support of the relationship;

   ·Statement by Mohammed Shahid Humayun, the sponsor’s father, dated 31 October 2018, in support of the relationship;

   ·Various receipts for the purchase of groceries and household items;

   ·CBA joint bank account statement for account ending *2793 in name of visa applicant and sponsor.  Statement is addressed to [Address 1], for the period of August to November 2018;

   ·Visa applicant’s telephone bill, listing his [Address 1], for October 2018;

   ·Witness statutory declaration from Rana Muhammad Akmal Sher, the visa applicant’s uncle, dated 1 November 2018, in support of the relationship.  He describes how his children (the visa applicant’s cousins) are very attached to the applicant and his wife;

   ·Witness statutory declaration from Mohammed Shahid Humayun, the sponsor’s father, dated 7 November 2018, in support of the relationship.  He describes how the sponsor and visa applicant live with them and how he meets the usual costs of the household with contribution from the parties;

   ·Screenshot of the visa applicant’s superannuation beneficiary nomination, listing the sponsor as the sole beneficiary. Screenshot was taken on 6 November 2018;

   ·Witness statutory declaration from Umair Shakoor, the visa applicant’s friend, dated 8 November 2018, in support of the relationship;

   ·The visa applicant’s roster portal, listing the sponsor as his emergency contact as at 17 February 2016;

   ·Statutory declaration from Adeel Rana, the visa applicant’s cousin, dated 11 November 2018, in support of the relationship.

7. On 28 January 2021, the applicant provided the following documents to the Tribunal in support of their application for review:

   ·A change of contact details form notifying us the visa applicant and the sponsor have a new residential address. An electricity bill issued in both parties’ names at [Address 2] was supplied. The billing period of this electricity bill is 16 October 2019 to 25 November 2019.

8. On 10 August 2020, the applicant provided the following documents to the Tribunal in support of their application for review:

   ·A joint relationship statement, addressing the various criteria of the visa. This statement is undated and unsigned;

   ·Car insurance policy addressed to the visa applicant dated 29 June 2020, at [Address 2]. The listed drivers include both the visa applicant and the sponsor;

   ·Electricity bill in joint names for the period of December 2019 to Jan 2020; May to June 2020, at [Address 2];

   ·Gas bills in joint names for the period of March to May 2020; October to November 2019, at [Address 2];

   ·Email between the applicant and a conveyancer regarding to purchase of a property;

   ·Photographs of both parties, and both parties with friends and family gatherings for meals from 2018 and 2019;

   ·Sponsor’s transferee statement form, State Revenue Office of Victoria;

   ·‘Fact find’ financial planning form filled in with both parties’ details;

   ·Flight itinerary for both parties’ travels to Dubai in March 2020;

   ·NAB bank statement for account ending *1598 in the sponsor’s name, showing purchases made between February and April 2020;

   ·

   Evidence of the sponsor’s studies and qualifications, and various letters from government agencies, hospitals, and others, addressed to them at [Address 2];

   
   
   

   ·CBA bank statements in joint names for account ending *2793 at [Address 2], for the period of May to June 2019; March 2020; May 2020;

   ·Visa Applicant’s CBA investment account ending *8123 statement;

   ·Non-lapsing death benefit nomination statement, dated 9 August 2020, listing the sponsor as sole beneficiary of the visa applicant’s superannuation fund;

   ·Photographs of both parties in 2020, including pictures of them in everyday life and during their overseas trip in 2020;

   ·Telephone bills in the visa applicant’s name at [Address 1], issued in March 2019, August 2019, and June 2020 showing phone calls made to 0406 472 759, the sponsor’s number;

   ·Photographs of both parties in everyday life, and during a trip to Queensland;

   ·Rent payment receipt for the property of [Address 2] , paid to 9 June 2020;

   ·Screenshot of the visa applicant’s work records, listing the sponsor as his emergency contact person;

   ·Screenshot of email between applicant and real estate agent regarding a maintenance request at [Address 2] , dated 20 May 2020;

   ·Screenshot of email between applicant and real estate agent regarding the rental of the property at [Address 2];

   ·Letter from visa applicant’s employer regarding wage increase, dated 12 April 2019;

   ·Screenshots of social media posts;

   ·Tenant history of visa applicant and sponsor at [Address 2] .

9. On 29 April 2021, the applicant provided the following documents to the Tribunal in support of their application for review:

   ·Witness statutory declaration from Mohammed Saif Shahid, the sponsor’s brother, dated 19 April 2021, in support of the relationship.

10. On 14 May 2021, the applicant provided the following documents to the Tribunal in support of their application for review:

    ·Photographs of both parties in everyday life, and gatherings with friends and family;

    ·Various receipts from supermarkets, chemist, and retail stores;

    ·Various letters from hospitals regarding medical appointments for the sponsor, related to treatment and specialists for epilepsy.

11. On 2 August 2021, the applicant provided the following documents to the Tribunal in support of their application for review:

    ·Visa applicant’s superannuation statement, for the period of July to December 2020, nominating the sponsor as sole beneficiary;

    ·CBA bank statement in joint names for account ending 2793 for April 2021; May 2021; June 2021;

    ·CBA variable loan statement in the visa applicant’s name for the period of January to June 2021;

    ·Electricity bill in joint names for the period of June to July 2021 at [Address 2];

    ·Gas bill in joint names for the period of May to July 2021 at [Address 2];

    ·Rent payment receipts for the property of [Address 2] , paid up to 9 August 2021;

    ·Contract of sale of real estate for the joint purchase of [Address 3], signed on 14 July 2021;

12. On 12 August 2021, the applicant provided the following documents to the Tribunal in support of their application for review:

    ·Letter for home loan approval for the purchase of property at [Address 3], dated 11 August 2021. 

13. On 4 February 2022, the applicant provided the following documents to the Tribunal in support of their application for review:

    ·Ultrasound, pathology report confirming the sponsor’s pregnancy, estimating the gestational period is 26 weeks as at 20 January 2022;

    ·Joint statement about the relationship, undated.

14. On 5 February 2022 the applicant provided the following documents to the Tribunal in support of their application for review:

    ·Building permit dated 19 January 2022 for construction at [Address 3];

    ·Building insurance at the property [Address 3].

15. On 2 May 2022, the applicant provided the following documents to the Tribunal in support of their application for review:

    ·Notification of newborn (Ayat Rana) to Centrelink

    ·Photographs of newborn with both parents

    ·Notice of birth issued by the Royal Women’s Hospital, confirming the birth of child

16. On 4 December 2022, the applicant provided the following documents to the Tribunal in support of their application for review:

    ·Letter from the visa applicant’s employer, thanking him for 5 years of service, dated 30 June 2021;

    ·Electricity account statement in joint names for [Address 2] , for the period of December 2021 to December 2022;

    ·Ambulance Victoria family membership for the period of 23 April 2020 to 22 April 2023;

    ·Birth certificate for Ayat Rana, date of birth 3 April 2022, listing both parties as mother and father;

    ·Photos of pages from child handbook;

    ·Centrelink newborn declaration form;

    ·Receipt for purchase of clothing items, purchased 23 December 2021;

    ·Council rates notice issued to both parties for property at [Address 3] , dated 23 August 2021;

    ·Centrelink family assistance payment letter dated 31 October 2022, addressed to the sponsor at [Address 1];

    ·Deposit tax invoice addressed to both parties for [Address 3], dated 22 February 2022;

    ·Centrelink parental leave pay letters issued to the sponsor at [Address 1], dated 15 March 2022 and 27 June 2022;

    ·Sponsor’s medical certificates;

    ·Building contract in both parties’ names, signed and dated 18 August 2021;

    ·CBA home loan statement account ending 7097 in the visa applicant’s name, for the period of January to June 2022; July to November 2022

    ·CBA home loan statement account ending 7118 in the visa applicant’s name, for the period of July to November 2022;

    ·Lock up tax invoice addressed to both parties for [Address 3], dated 20 October 2022;

    ·CBA offset bank account in joint names account ending 2793 for the period of May to August 2022; August to November 2022;

    ·Updated joint relationship statement, addressing the various criteria for the visa, undated;

    ·Photographs of the house under construction at [Address 3];

    ·Marriage certificate issued by the registry of births, deaths and marriages Victoria, confirming the marriage took place on 19 August 2014. The civil service was solemnised by celebrant Mustafa Okur at 14-16 Freda St, Broadmeadows;

    ·Invoice for Naheed Akhtar’s tourist visa application, dated 22 March 2022;

    ·NAB bank statement for account ending 8402 in the sponsor’s name, for the period of January to July 2022;

    ·NAB bank statement for account ending 1598 in the sponsor’s name, for the period of June to November 2022;

    ·NAB Statement of account balances in the sponsor’s name, as at 1 December 2022;

    ·CBA personal loan statement for account ending 4521 in the visa applicant’s name, for the period of January to June 2022; July to November 2022;

    ·Photographs of both parties with Ayat;

    ·Religious marriage certificate between both parties on 5 August 2014;

    ·Visa applicant’s salary review letter from his employer, dated 11 July 2021 and 15 July 2022;

    ·Tax invoice addressed to both parties for slab at [Address 3];

    ·Sponsor’s notice of assessment for year ended 30 June 2022 and the visa applicant’s income statement for financial year 2021-2022;

    ·Rent payment history for both parties at [Address 2], statement dated 30 November 2022;

    ·Rental payment receipts for [Address 2] , paid to 9 December 2022;

    ·Water service provider email address to both parties for the service address at [Address 3];

    ·Water bill in joint names for the service address at [Address 3], issued on 3 September 2022;

    ·Witness statutory declaration from Ace Anthony Christofer Edward Barbuto, the visa applicant’s colleague of two years, dated 28 November 2022, in support of the relationship;

17. On 18 April 2023, the applicant provided the following documents to the Tribunal in support of their application for review:

    ·Witness statutory declaration from Lakshana Ramesh, friends of both parties, dated 11 April 2023, in support of the relationship;

    ·Witness statement from Rana Sher Ali, the visa applicant’s brother, undated, in support of the relationship;

    ·Witness statement from Rna Waqas Ayyaz, the visa applicant’s childhood friend, dated 17 April 2023, in support of the relationship;

    ·Witness statement from Waleed Hashimi, the sponsor’s friend, dated 17 April 2023, in support of the relationship;

    ·Witness statement from Mushtary Hashimi, the sponsor’s classmate, dated 17 April 2023, in support of the relationship;

    ·Witness statement from Ayesha Liaqat, undated;

    ·Witness statement from Anil Rana, undated;

    ·Witness statement from Hira Adeel, undated;

    ·Joint witness statement from Shazia Perveen and Ajaz Hussain, undated;

    ·Photographs of both parties and Ayat at home, and at outings;

    ·Medical report regarding the sponsor’s miscarriage, dated 24 February 2023;

    ·Sponsor’s mother’s (Naheed Akhtar) visitor visa refusal, dated 6 June 2022;

    ·Witness statutory declaration from Muhammad Majid Saleem, the visa applicant’s friend, dated 19 April 2023, in support of the relationship. 

18. I have considered the extensive material submitted in support of this application as outlined above, even where I have not specifically referred to it in this statement of reasons.  

    Whether the parties are in a spouse or de facto relationship

1. Relevantly to this matter, cl 801.221(2)(b) requires that at the time of decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian Citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the applicant continues to be sponsored by his ‘sponsoring partner’ and that he therefore satisfies subclause 801.221(2)(b).

2. The visa applicant applied for a subclass 820/801 visa on 12 September 2014.  He was granted a subclass 820 visa on 11 June 2015.  More than two years have passed since the applicant applied for the visa. The visa applicant meets subclause 801.221(2)(d).

3. Relevantly for this review, Clause 801.221(c) requires that the applicant is the spouse or de facto partner of the sponsoring partner at the time of making a decision on the visa. 

4. ‘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 sponsor’s 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?

5. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties married on 19 August 2014 in Melbourne.  There is no suggestion in the evidence and information before me that the marriage was not valid.  The visa applicant was formally divorced from his first wife (formal evidence has been provided that the divorce was officially registered in Pakistan on 12 May 2014).  The sponsor has never been married. 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?

6. I had the opportunity to consider the extensive supporting documents outlined above which generally and consistently supported the existence of an ongoing and genuine relationship between the applicant and sponsor over many years.  In addition, as will be noted from the material outlined above, a large number of supporting declarations attesting to the relationship have been provided from friends, work colleagues and family.  I also had the opportunity to take evidence from the visa applicant and sponsor.  I found the applicant and sponsor (and the witness) to be frank and reliable witnesses.  I accept their evidence.

   Financial Aspects of the Relationship.

7. The parties have provided evidence that they pool their finances.  Their evidence at hearing also reflects that they share financial decisions and responsibilities.   The sponsor described how there is an account in her name into which they put savings, otherwise they meet most of their daily expenses from the joint accounts.  They now have an offset account linked to their mortgage.  They share income and savings and use them for joint purposes, such as for household expenses, groceries, and to purchase their home and finance the purchase of a delivery franchise so that the visa applicant could start his own business, currently in its’ early stages.  They have jointly borrowed from the Commonwealth Bank and have a mortgage for the house build and land on which their home is currently nearing completion.  The property and also the mortgages are in joint names. Contracts, Loan documents and bank statements have been provided.

8. The parties each gave evidence that the visa applicant started his own delivery business in April 2023, and in the start-up period, they are utilising their savings to support the family’s needs. The sponsor gave evidence that she supported the visa applicant’s decision to leave his employment and start his own business.  Consideration of the financial aspects of the relationship suggest that the visa applicant and the sponsor pool their financial resources, make shared financial decisions and that they share joint financial liabilities. Consideration of the financial aspects of the relationship suggest that the applicant and sponsor are in a spousal relationship.   

   Nature of the household

9. The visa applicant and sponsor gave evidence that the household chores are shared, with the visa applicant responsible for vacuuming, bins and dishes and the sponsor for cooking and other cleaning. The sponsor is home with the baby more and so she provides care, though the visa applicant assists where he can. They both expressed their excitement to be moving shortly (after building delays, they understand the certificate of occupancy will be issued within three weeks) into their own new home. 

10. The visa applicant does any chores where driving is required because the sponsor has restrictions on her licence because she suffers from epilepsy.  They each described how her illness has affected them over many years, (particularly impacting on their capacity to start a family and initially to move away from the sponsor’s parental home).  However, the evidence from each of them reflects that the sponsor has been well for almost a year now without any fits and they are hopeful that she will be able to get her unrestricted licence soon.  When they move to the new home, the property will be quite far from her work in Fitzroy and her parents (who provide daycare for their child) and they have been discussing how important it will be for her to be able to drive. 

11. The sponsor’s brother gave evidence that the family was really thrilled for them as a young couple having their daughter and buying their first home.  The child Ayat is a family favourite and universally loved.  He noted that the visa applicant has always been careful about his sister’s medical condition, and has taken her to hospital and to appointments when necessary.  He gave evidence that his sister’s condition has greatly improved due to the care the visa applicant takes to limit the stress his sister suffers.

12. The parties each referred to their impending move to their new home in Thornhill Park.  The sponsor said that she had made some enquiries in the area and it looks like there will be opportunities for her to do childcare work locally in the future.  In that event, she would take her daughter there with her. They each gave evidence that they will look into that more after they move in and have settled.   

13. The sponsor expressed excitement to fit out their new home, particularly her daughter’s bedroom.  They were keen to show pictures of the floor which had just been laid at the home (earlier on the morning of the hearing) and of their daughter with the visa applicant. 

14. I asked why the medical documents around the child’s birth gave the sponsor’s parents’ address and not their own.  The visa applicant explained that due to the sponsor’s medical history, they wanted to make sure she could go to the Royal Women’s Hospital for her obstetric appointments and birth.

15. Consideration of the nature of the household suggests that the visa applicant and sponsor share a home and the responsibilities for child-care and chores as spouses in an unremarkable manner.   

    Social aspects of the relationship

16. The visa applicant and sponsor each gave evidence that everyone important in their lives – family and friends and employment colleagues – are aware that they are a married couple.  They attend family and social events together and with their child.  Photographs have been provided showing them together and with their child at various social and life events.  They each gave evidence that they still eat regularly at the sponsor’s family home after the sponsor’s work day.  If the visa applicant is unable to collect them for some reason, someone from the sponsor’s family will take them home if necessary.  The usual pattern is that the visa applicant drives, and they take the child to the parents’ home before dropping the sponsor off at her workplace at Fitzroy Coles.  The sponsor’s mother cares for the child when the sponsor is at work.

17. The sponsor said that her family love the visa applicant, and her parents treat him as if he were one of their own sons. When I asked each of them if their marriage was arranged, they responded that theirs was a love marriage, but it was also approved of by their respective parents.  

18. They met at the wedding of the applicant’s uncle to the sponsor’s sister.  The parties gave evidence that the sister and uncle’s marriage has ended some years ago (around 2018).  They had two children together.  None of the visa applicant, the sponsor or the sponsor’s brother claimed to be aware of the reasons behind the breakdown of the marriage.

19. Having considered the extensive relationship support statements and the applicant, sponsor and witness evidence, I am satisfied that consideration of the social aspects of the relationship strongly suggests that the visa applicant and sponsor present themselves as and are considered to be spouses within their family and community.

    Nature of the persons’ commitment to each other

20. The visa applicant said that he is very proud of what they have achieved working together as a couple.  The parties each separately described how the sponsor’s epilepsy has contributed to delays in them living independently of her parents and also in starting their own family. They had to wait until the sponsor was well enough to have a child due to her medical condition, but their daughter has brought them great joy.  The visa applicant described the child as a lucky charm. He confirmed that he sees his relationship with his wife as long term and observed they have already been together already for nine years.

21. The sponsor described how her husband cares for her, is considerate of her, and despite the hardships they have experienced, he has loved and supported her.  The visa applicant described how the sponsor had endured various intrusive tests to manage and monitor her epilepsy and how glad he is that she has been free of fits since their daughter was born. The sponsor confirmed that the visa applicant has helped her when she is unwell, including showering her and cleaning up her vomit after epileptic episodes.  The sponsor disclosed that she had suffered a miscarriage early in 2023 at only seven weeks and that they supported each other in that loss.  The applicant had referred to the miscarriage and their sadness also. The sponsor confirmed that she loves the applicant dearly and considers herself very lucky to have him. In answer to my question what she would do if he was required to leave Australia, the sponsor said she would be lost without him and would seriously consider moving with him to Pakistan if that was what she had to do.  She said she would do whatever she could to protect their family and relationship. 

22. Having considered the information and evidence before me, I am satisfied that the visa applicant and sponsor have a strong commitment to each other and consider their relationship to be a long term one.  The relationship has been ongoing for almost a decade.  They each gave evidence and I accept that they share love for each other and their daughter, with the possibility of growing their family in future. Consideration of the nature of the commitment to the relationship suggests that the applicant and sponsor are spouses.

    Any other relevant matters

23. The departmental file contained an allegation made in 2016, the substance of which was as follows: 

    ‘Claims the applicant started a relationship with person making allegation. He told her if she wouldn’t do a de facto relationship for him he would find someone else and was ‘tossing between his friend and his uncle’s sister-in-law.  She had just learned he is engaged to the friend he wanted to marry and plans to marry her as soon as his fraudulent spouse visa clears.  The source of this information was said to be the visa applicant’s cousin living with him in sunshine.’

24. I asked the applicant if he was aware of this allegation.  He said he was not surprised by this allegation.  He had been in a relationship with a woman before he started his relationship with the sponsor.  That woman was angry about it and is the type of person who would make an allegation like this.  She told him she would make things hard for him. He had talked to the sponsor about it and she was aware that he had previously been in a relationship with another woman in Australia. The visa applicant said that it is not true that his marriage is a ‘fake marriage’.  He believes these allegations have been made out of malice.

25. The sponsor gave evidence that she had not heard about the allegation, but she knew that her husband had a past and that he had seen another woman in Australia who was not happy about him leaving her and marrying the sponsor. She gave evidence that theirs is a genuine and loving marriage and she accepts her husband despite his past relationships.

26. The nature of this allegation is consistent with an intention by a former girlfriend of the visa applicant to derail his visa application. The allegation is not able to be tested and has been put to the parties, who gave evidence that it is not true.  A substantial period of time has passed since the allegation was made and extensive evidence has been provided tending to demonstrate that the visa applicant and sponsor have been in a committed and ongoing relationship since 2014.  In all the circumstances of this case, I consider that no adverse weight should be or could be given to this allegation in considering the nature of the relationship here under consideration.    

27. The departmental file also contains a certificate under s.376 of the Migration Act. This certificate related to a document containing an online allegation made in March 2018. I consider that the certificate is valid but due to the nature of the allegations, I decided that the substance of the allegations relevant to the applicant and sponsor should be disclosed to them. I advised the applicant and sponsor (separately) that an allegation had been made that the sponsor’s father is a people smuggler and that the marriages of two of his daughters (this marriage and that of the applicant’s uncle to the sponsor’s sister) were arranged and fake marriages. I told the applicant that he did not have to respond to the allegation and that he could ask for time to do so. I did not give him more information than summarised above.

28. The visa applicant decided to respond and said that he had actually heard something of this allegation in the past.  His mother, in Pakistan, told him that she had heard it some years ago. He believes that there is a personal or financial dispute between his uncle and someone else in their extended family and also that some members of his mother’s family (she is one of eleven children) are unhappy that the applicant and his uncle both married people outside of their family.  He noted that his mother’s family is large and there is also a lot of drama.  He said that his mother told him that someone said to her ‘why would you marry them outside of the family unless it’s for the visas?’  The implication was that they were suspicious of the sponsor’s family.  The person also told his mother that they were going to make trouble for them.  The visa applicant said that in the family along with the drama there is jealousy and a refusal to accept when someone else is happy.

29. The visa applicant said that he does not agree with the traditional view of marrying cousins to each other, after promising them as babies, which is strongly advocated in his family. Marriages outside of this custom are strongly opposed. His first marriage was an arranged marriage to a cousin when he was very young, and he was never comfortable with it. They performed the Nikkah ceremony, but they never lived together.  When asked, he said that his first wife was actually glad that their relationship ended. She has since married a man of her own choosing and has had children with him, and is happy. The visa applicant was confident that she was not interested in making allegations like this.  He said that he believes the allegation has been made by a different, extended family member who has a bitter financial dispute with his uncle, though he doesn’t know the particular details of the dispute. In response to the particular allegation, the visa applicant said that his father-in-law is not a people smuggler, he is a retired chef.  The sponsor’s family did formally consent to and approve the marriage, but only after he and the sponsor had asked for their permission to marry.  Theirs is not a fake marriage for the purpose of getting a visa.  He referred to their history together, and the family and future they have built together as demonstrating this to be the case.

30. I also put this allegation separately to the sponsor.  She had not heard it before, and was surprised by the allegation. She gave evidence that it is not the case that her father is a people smuggler.  He was a chef but he is retired now.  She reiterated her earlier evidence that she and the visa applicant fell in love and asked for her parents’ consent to date and marry.  They had her parents’ official approval, but her father did not arrange the marriage and it was not fake.  She also said her sister’s marriage was not a ‘fake’ marriage. She had already given evidence that her sister’s marriage had ended some years ago.

31. After carefully considering the second allegation and the evidence given by the visa applicant and sponsor, I have decided that I will give no weight to the anonymous allegation that the applicant and sponsor’s marriage was a fake marriage, organised by the sponsor’s father. I do not accept that there is any objective proof that the sponsor’s father is a people smuggler, and the allegations in the relevant ‘dob in’ are now quite old and unable to be tested. The mere making of an allegation of such a serious nature has the capacity to negatively influence the proper consideration of a visa application without any supporting evidence being needed or provided, and thus to unfairly outweigh probative and contemporary evidence. On consideration, and noting that it is also not generally consistent with the earlier allegation which I have given no weight, I have decided that I prefer the evidence given by the applicant and sponsor which is supported by extensive documentary evidence as discussed above, and which strongly suggests that the visa applicant and sponsor are in a long term and committed marriage. I place no weight on the allegations referred to in the document covered by the certificate under s.376 of the Migration Act.

    Conclusion

32. I have weighed the evidence and information before me and my findings above.  I have given consideration to the allegations made in 2016 and 2018, but I have decided that they should be given no weight adverse to the applicant for the reasons given above.  I have considered the various aspects of the relationship between the parties as required by regulation 1.15A.  I am satisfied that the visa applicant and sponsor share a mutual commitment to a shared life to the exclusion of others, that they are in a genuine and continuing relationship, and that they live together.  Given these findings, I am satisfied that the requirements of s 5F(2) are met at the time of this decision. Therefore, the applicant meets cl 801.221(2)(c).  I have also found that the applicant meets cl 801.221(2)(b) and cl 801.221(2)(d).

1. 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 801 visa.

   DECISION

2. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

   ·subclauses 801.221(2)(b), 801.221(2)(c) and 801.221(2)(d) of Schedule 2 to the Regulations.

   Anne Grant
   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).