Stothers (Migration)

[2019] AATA 6478

Stothers (Migration) [2019] AATA 6478 (15 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Faye Maree Stothers

VISA APPLICANT:  Mr Muhammad Dawa Khan

CASE NUMBER:  1724432

DIBP REFERENCE(S):  BCC2016/533207 BCC2017/4011503 BCC2017/4011507

MEMBER:David Crawshay

DATE:15 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 15 November 2019 at 11:47am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional) –– genuine and continuing relationship – shared day-to-day household expenses – parties represent themselves to others as married to each other – plan and undertake social activities – companionship and emotional support – commitment to shared life as married couple to exclusion of all others – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 5
Migration Regulations 1994 (Cth), r 1.15, Schedule 2, cls 309.211, 309.221

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 Immigration on 25 August 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is Mr Muhammad Dawa Khan, 30, a national of Pakistan. Mr Khan is also known as “Arman Khan”. The visa applicant applied for the visa on 4 February 2016 on the basis of his relationship with his sponsor, Mrs Faye Maree Stothers, 60, 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the visa applicant did not meet the definition of spouse under s.5F of the Act.

4. The review applicant appeared before the Tribunal on 12 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, along with three witnesses – Ms Lorraine Joy Ryan, who is the review applicant’s sister, and Ms Kellie Blezard and Ms Michelle Kammerman, who are two friends of the review applicant.

5. The review applicant was represented in relation to the review by her registered migration agent.

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

   BACKGROUND

7. The claimed facts of the matter are as follows.

8. The visa applicant comes from Mardan, a city in the north of Pakistan. He is a farmer.

9. The review applicant lives in Melbourne and currently works as a Seventh Day Adventist pastor in Lilydale in Melbourne’s east. She was married on 1977 and had two children to the relationship, a son and daughter, who are both of adult age. The review applicant legally divorced her husband in July 2015 after an extended period of separation from him.

10. The parties met on Facebook in February 2015. The visa applicant was looking for people to practise conversational English with, as he had an interview with a firm in Dubai. He sent a friend request to the review applicant. She mistook it for a friend of a church member who had travelled to Pakistan to help with one of the churches there, and accepted the request.

11. The parties began communicating with each other on Facebook and this quickly converted into talking via video link on Skype. The parties would communicate regularly, if not daily, by means of Facebook Messenger and Skype, often talking for extended amounts of time. In April 2015, the review applicant also began remitting sums of money to the visa applicant.

12. The review applicant attempted to sponsor the visa applicant on a visitor visa but this was refused. The parties instead met each other for the first time face-to-face in Sri Lanka in late-July 2015. They married on 6 August 2015 in Wellawatta, Sri Lanka and spent time together before the review applicant returned to Australia five days later.

13. The parties attempted to meet each other again in Nepal in November and December 2015, as part of a tour organised by the review applicant’s church, but a problem with visas into Nepal meant that the visa applicant could not travel to be there.

14. The visa application was lodged on 4 February 2016.

15. Subsequent trips were taken together – to Sri Lanka in 2016 and 2017, where they spent time with a friend of the review applicant and attended a wedding, as well as to Malaysia in 2018, where they went to resorts in Penang and just outside of Kuala Lumpur.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the visa applicant is the spouse of the review applicant under s.5F of the Act.

    Whether the parties are in a spouse or de facto relationship

17. Clause 309.211(2) and 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.

18. ‘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), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) is effectively a question which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

19. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties submitted a translation of a Sri Lankan marriage certificate for a marriage that was solemnised by the Registrar on 6 August 2015 at the Marriage Registrar’s Office in Wellawatta, Sri Lanka. 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?

20. The Tribunal had the opportunity to question the review applicant at length at hearing. She presented as genuine and the evidence she gave was clear, cogent and compelling. She opened up about herself in a way that exposed her vulnerability. The Tribunal has no hesitation in accepting her evidence – evidence that has assisted it in coming to the conclusion that, at least as far as she is concerned, the relationship is genuine and continuing and the parties have a commitment to a shared life as a married couple to the exclusion of all others. The question for the Tribunal is whether that view is shared by the visa applicant, and this is explored below.

    Financial aspects of the relationship

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

22. The parties presented no evidence of joint ownership or joint liabilities. They have no joint bank accounts and owe no legal obligations to the other person. The Tribunal acknowledges that the parties live in separate countries and their ability to integrate their finances is limited. This paucity of evidence is therefore accorded no adverse weight.

23. The review applicant has submitted evidence of several money transfers to the visa applicant dating from April 2015. Some of these transfers are quite significant and they amount to around $8,500 in total. Furthermore, the parties gave consistent evidence about the sharing of day-to-day household expenses – the review applicant would pay for most things when they were together and that the visa applicant would contribute a bit. This evidence is given some weight by the Tribunal in its assessment of whether the parties’ relationship is genuine and continuing.

    The nature of the household

24. The Tribunal has considered any joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of housework in assessing the nature of the household.

25. The review applicant has two adult children, a son and daughter. Her son lives in New Zealand, and her daughter lives in Melbourne but not with her. There is no evidence of any joint responsibility for their care and support by the parties.

26. The Tribunal now turns to the parties’ living arrangements, which are complex as the review applicant has never travelled to Pakistan to visit the visa applicant and the visa applicant has never travelled to Australia. They have, instead, met each other in third countries, such as Sri Lanka in 2015, 2016 and 2017, and Malaysia in 2018. As such, it is difficult to question the parties on the particulars of their claimed joint residence because this varied from trip-to-trip, if not from day-to-day.

27. What can be said is that the parties offered consistent testimony in relation to their trips to meet each other, including what they did while on those trips and the fact that they shared their accommodation. Documentary evidence in the form of receipts from hotels, boarding passes and numerous photographs substantiates much of their evidence in respect of these trips. This evidence, coupled with the earlier finding in relation to the veracity of the review applicant’s evidence, leads the Tribunal to conclude that the parties lived together as claimed during the times they were in the one country. It gives this evidence substantial weight.

    The social aspects of the relationship

28. The Tribunal has considered whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake joint social activities in assessing the social aspects of the relationship.

29. The parties were married in Sri Lanka, well away from friends and family on both sides. The two witnesses to their marriage were people they had only met on that trip. This was not a public manifestation of the parties’ relationship to say the least. However, the Tribunal was presented with evidence from third parties in the form of statutory declarations dated September and October 2015 showing that the parties’ wedding was a known fact among friends and family at or just after the time they were married.

30. Since then, the parties’ relationship has met with mixed feelings from family and friends. While the Tribunal has been provided with declarations from at least one family member of the visa applicant that attests to the genuineness of the relationship, the review applicant’s children have been guarded at best. According to the review applicant, her son does not enjoy a great relationship with the visa applicant, and her daughter was openly hostile at the beginning, believing that the visa applicant was trying to take advantage of her mother.

31. The review applicant presented the Tribunal with a list of over 100 different people who she said could attest to the genuineness of the parties’ relationship, along with their telephone contact details. While the Tribunal can be sure that very few, if any, of these people have met the visa applicant in person, and cannot therefore attest with any first-hand knowledge, it gives this evidence some weight as a sign that the review applicant has represented herself as being in a married relationship with the visa applicant.

32. The Tribunal had the opportunity to question three witnesses about the parties’ relationship, eliciting their opinions as to its genuineness. All three claim to have heard about the relationship from the review applicant early on in its development in 2015. Ms Blezard testified that she has seen the parties’ relationship blossom, and that she sees the amount of love between the two. She claims to speak to the visa applicant quite regularly, sometimes even calling him herself or receiving phone calls from him. She claims to have been in the room with the review applicant when the visa applicant proposed to her. Ms Ryan, who is the review applicant’s sister, said that she feels the visa applicant is very genuine as he is very committed to the review applicant. She gave the example of when the review applicant was in hospital in 2018. Ms Ryan would speak regularly to the visa applicant on the telephone, and his concern for the review applicant was evident. Ms Kammerman said that she witnessed the parties’ conversations from early on, and would join in on them. Ms Kammerman has holidayed with the parties in Sri Lanka in 2017, and said she watched them interact as a married couple and has seen the visa applicant care for the review applicant.

33. The three witnesses have offered powerful testimony to the Tribunal in support of the parties’ relationship. Although only Ms Kammerman has met the visa applicant in person, the opinions of the other two witnesses should not be given diminished weight as they all appear to maintain friendships with the visa applicant. As such, they are akin to mutual friends. The Tribunal therefore accords this evidence significant weight in finding that the parties represent themselves to other people as being married to each other, and that these other people regard them as such.

34. The Tribunal now turns to the basis on which the parties plan and undertake joint social activities. In this regard, the Tribunal points to evidence relating to their various trips to Sri Lanka and Malaysia over the years from 2015 to 2018 as demonstrating that they do plan and undertake such activities, and it gives this some weight in its overall consideration of the social aspects of the relationship.

    The nature of the parties’ commitment to each other

35. The Tribunal has considered the duration of the parties’ 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 in assessing the nature of the parties’ commitment to each other.

36. The parties claim to have met in February 2015 on Facebook. In late-July 2015 they claim to have met in person in Sri Lanka before getting married on 6 August 2015. This was the date the parties nominated as the date that they committed to a shared life as a married couple to the exclusion of all others.

37. Based on the consistency of the parties’ testimony, and the Tribunal’s overall finding as to the review applicant’s credibility, it accepts that the parties met as claimed. This therefore means that the parties were known to each other for one year at the time when the visa application was lodged, and had met each other in person and been married for around six months at that time. At the time of this decision, the parties have known each other for almost five years and been married for nearly four-and-a-half years. The duration of the parties’ relationship is noted by the Tribunal and given substantial weight.

38. The Tribunal has already found that the parties lived together as claimed during periods when they were in the one place. These periods of time, during the years from 2015 to 2018, total around 80 days. This is also noted by the Tribunal and given some weight.

39. When the parties were not together, they claim to have communicated regularly with each other. The review applicant has submitted evidence of the parties’ Facebook Messenger records over two periods – from 10 to 27 September 2015 and from 24 September to 25 December 2016. These records yield thousands of individual messages back-and-forth, which on their face reveal that the parties communicate extensively. Additionally, the review applicant has submitted Skype call records between the parties for the period from 7 June 2015 to 13 February 2016. Again, these records are extensive and show that the parties communicated regularly and often for more than an hour at a time. The Skype records do not reveal whether these calls are voice or video calls, although the review applicant told the Tribunal at hearing that the parties engage in video calls regularly.

40. When questioned at hearing, the review applicant demonstrated a detailed and intimate knowledge of the visa applicant – about his family, living arrangements, hobbies and more besides. The visa applicant shared a similar knowledge of the review applicant when questioned on her living arrangements, jobs and medical conditions. Based on this evidence and on the communications records, it is clear to the Tribunal that the parties communicate regularly, and that they draw companionship and emotional support from these communications as well as from their interactions face-to-face. Religion obviously forms a large part of the review applicant’s life, and it appears the visa applicant is religious himself. The parties discuss their different faiths with each other and there appears to be a level of respect and interest between them in this regard.

41. The Tribunal questioned the parties on their future plans should the visa applicant be granted his visa. The review applicant told the Tribunal that, earlier on in their relationship, she had planned for the visa applicant to be an assistant sports instructor at the school where she used to work. She said that the parties have recently spoken about him taking a course to be a medical interpreter, and about obtaining a Certificate IV in outdoor recreation so that he can begin working at an outdoor camp in Mt Evelyn. The review applicant also envisages that he will join a local cricket team as he currently plays in Pakistan. The visa applicant confirmed all these plans with the Tribunal. The question of children was brought up, and the parties both stated that they had spoken about the idea of adoption. The visa applicant was asked whether he would be willing to continue the relationship without children of their own, either biologically or by adoption, and he replied that he would be happy to.

42. When asked the question about what would happen in the event the visa were not granted, both parties replied that they would have to find somewhere other than Australia to live. The review applicant said that she would apply for work through the church, and the visa applicant said that he would seek to reapply for the visa.

43. Based on the evidence given by the parties, the Tribunal accepts that they have discussed their future together and that they see their relationship as long-term. It gives this aspect substantial weight in the assessment of the nature of the parties’ commitment to each other.

44. It is clear to the Tribunal that the review applicant has risked her reputation and livelihood on this relationship. As detailed above, her children still harbour misgivings about the relationship. She submitted evidence that she has also endured the scrutiny of parents at the school where she used to work, with one reporting her to the school. That she has continued her relationship with the visa applicant in spite of this, and has managed along the way to integrate her husband into her group of friends and the church community, is testament to her courage but ultimately to her commitment.

    CONCLUSION

1. This matter presents the Tribunal with some unique facts, not least of which is the significant age difference between the parties. While the casual observer, armed with no more than his or her pre-conceived ideas, might draw negative inferences from this, the Tribunal does not. More to the point, it cannot. The Tribunal is charged with assessing the evidence presented to it against the framework laid down by legislation – nothing more, nothing less.

2. This legislative framework provides that one of the requirements to be granted a visa is that the visa applicant must be the spouse of an Australian citizen at the time of application and at the time of the decision. To be considered a spouse under s.5F(2) of the Act, the parties must be legally married, there must be commitment to a shared life together as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the parties must not live separately and apart on a permanent basis. Having considered all the evidence, of which there is plenty, the parties have fulfilled all of these requirements and there is no other course available to the Tribunal other than to remit it back to the Department.

3. 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. The parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, their relationship is genuine and continuing, and they do not live separately and apart on a permanent basis.

4. Therefore the visa applicant meets cl.309.211 and cl.309.221.

5. 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 309 visa.

   DECISION

6. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl.309.211 of Schedule 2 to the Regulations; and

   ·cl.309.221 of Schedule 2 to the Regulations.

   David Crawshay
   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).