Tajek (Migration)

[2023] AATA 1466

Tajek (Migration) [2023] AATA 1466 (11 January 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

REVIEW APPLICANT:  Mr Korosh Tajek

VISA APPLICANTS:  Mrs Wahida Yar Mohammadi Mr Sam Yar Mohammadi

Ms Atusa Yar Mohammadi Ms Ersa Yar Mohammadi

CASE NUMBER:  2211960

DIBP REFERENCE(S):  BCC2016/3107490

MEMBER:  Kira Raif

DATE:  11 January 2023

PLACE OF DECISION:  Sydney

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

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 11 January 2023 at 12:41pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – – Federal Circuit Court remittal – genuine spousal relationship – arranged marriage – provision of financial support – regular communication – relationship with former spouse – use of ex-wife’s mailing address – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65

Migration Regulations 1994 (Cth), r 1.15A; 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 24 January 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

1. The first named visa applicant (the visa applicant) applied for the visa on 8 August 2016 on the basis of her relationship with the sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 and cl. 309.221 because the delegate was not satisfied the applicant’s relationship with the sponsor was genuine and to the exclusion of all others.

1. The sponsor (the review applicant) seeks review of the delegate’s decision. In March 2018 the Tribunal (differently constituted) affirmed the decision review. The review applicant sought judicial review of the Tribunal’s decision and the matter was remitted to the Tribunal by the court for reconsideration.

1. The review applicant appeared before the Tribunal on 11 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The review applicant’s children attended the hearing and were available to give oral evidence but the Tribunal decided it was not necessary to hear from them. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

Relevant law

1. At the time the application was made, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

1. 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

1. ‘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). Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The visa applicant provided with her application a copy of the

marriage certificate showing the couple married in Afghanistan in September 2015. There is nothing to suggest the marriage is not valid. On the evidence before it, the Tribunal is satisfied 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?

1. The visa applicant claims that the sponsor travelled to Australia, having married his previous partner, and he obtained the Partner visa. The visa applicant states that his relationship with his former wife has broken down after he was granted the Partner visa and they separated and divorced. The review applicant claims that he wanted to re-marry so he asked his sister to arrange marriage with the visa applicant, who lived in the same neighbourhood and was known to him for many years. The visa applicant states that he travelled to Afghanistan and the couple had a traditional wedding with family members and others attending.

1. There is a considerable amount of documentary evidence before the present Tribunal and the Tribunal has had the benefit of the parties’ oral evidence. The Tribunal generally found them to be credible witnesses.

1. The evidence before the Tribunal is that the review applicant has been supporting the visa applicant and her children financially since 2018. He explained to the Tribunal that the visa applicant had limited income when she was able to work as a tailor but since Covid and since the Taliban took over, she has not been able to earn a living and has been fully reliant on the review applicant. The Tribunal accepts the evidence that the review applicant has been sending money to the visa applicant monthly and the funds comprise his own savings, as well as contributions from his children in Australia.

1. There is no joint ownership of assets, no joint liabilities and no legal obligations owed to each other but the Tribunal acknowledges that these may not be possible in the parties’ present circumstances. The Tribunal is of the view that, in the circumstances of this case, the sponsor’s regular financial support to the visa applicants evidences the couple’s desire to support each other and shows their commitment to the relationship.

1. The review applicant made three trips to Afghanistan since the couple registered marriage in September 2015 and had spent several months in Afghanistan. Both he and the visa applicant told the Tribunal that he is not able to travel more frequently because it is not safe for him, given his past activities. The Tribunal accepts that the couple had spent time together and that during these visits they had established a joint household. The evidence before the Tribunal is that the visa applicant was responsible for most of the housework and the review applicant helped. The Tribunal also accepts that in the past year, the visa applicants have been living with the sponsor’s cousin as they believe it is a safer place for the family. That is, the review applicant has maintained his responsibility for the safety and well-being of the visa applicants. That also points to his commitment to the relationship.

1. The Tribunal also accepts the evidence that the review applicant has established a meaningful relationship with the visa applicant’s children. The visa applicant told the Tribunal that they consider him to be their father and want to be with him and the Tribunal accepts the evidence that there is regular communication between them and that the review applicant has a genuine interest in the children’s future. The Tribunal accepts that both the review applicant and the visa applicant have shared responsibility for the care and support of the children.

1. There are several statements from third parties recognising the relationship between the visa applicant and the review applicant and an amount of photographic evidence of their activities. The Tribunal accepts that the relationship is known to others and that others view

the relationship as a long term one. The Tribunal accepts the review applicant’s evidence that most family members and many others attended the wedding and that during his visits to Afghanistan he introduced his wife to others. It is also significant, in the Tribunal’s view, that the review applicant’s children support the relationship (and provide financial support to the visa applicants) and that they had spent considerable time with the visa applicants during their visits to Afghanistan.

1. The Tribunal accepts that the visa applicant and the sponsor represent themselves to other people as being married to each other. The Tribunal accepts that they plan and undertake joint social activities (to the very limited extent it was possible to do that in Afghanistan).

1. The couple married in September 2015 and to date, their relationship has been in existence for over seven years. The Tribunal accepts that in that time, they provided comfort and emotional support to each other and that they intend to continue to do that in the future. The Tribunal also accepts that they had a meaningful discussion about their future together and that they view the relationship as a long term one.

1. The Tribunal acknowledges the concerns expressed by the delegate and the previous Tribunal about the review applicant’s relationship with his previous wife. The review applicant explained to the Tribunal that his ex-wife was becoming more and more religious and refused to have an intimate relationship with him. He told the Tribunal that he could not explain these reasons to the Tribunal previously due to the social norms and inhibitions. The review applicant also stated that his ex-wife promised him prior to the previous Tribunal hearing that she would explain the reasons she did not want to live with him but she did not and due to cultural considerations, he could not talk about sexual matters in front of her son during the last hearing. The Tribunal accepts these explanations as plausible.

1. With respect to using his ex-wife’s address for correspondence, the review applicant told the Tribunal (consistently with the evidence he gave to the previous Tribunal) that he rented accommodation and could not use his mailbox which was leaking. As he had a good relationship with his ex-wife’s children, they offered to him to continue to use their mailing address which he did. The Tribunal is mindful that aside from the nomination of the ex-wife’s address as his own, there was no other evidence that the couple continued to live together as husband and wife. There was no site visit to their stated address to confirm living arrangements and no evidence from third parties to indicate that they continued to live together when the review applicant claims to have been separated from his ex-wife. In the circumstances, the Tribunal does not consider that his use of his ex-wife’s mailing address is sufficient to establish that they continued to live at the same address as husband and wife or in a de facto relationship.

1. With respect to the claim that the ex-wife referred to him as her husband after the separation, the review applicant denies that claim and states that his ex-wife attended the previous Tribunal hearing to confirm that was not the case.

1. The Tribunal does not have significant concerns about the review applicant’s relationship with his former spouse, in light of the explanations offered above. Putting aside these issues of the review applicant’s relationship with his ex-partner, there is strong evidence that the review applicant’s relationship with the visa applicant is genuine and mutually committed and had been such since the time of their marriage.

1. Having regard to all the evidence before it, the Tribunal accepts that the visa applicant and the review applicant have a mutual commitment to shared life to the exclusion of others. the Tribunal accepts their relationship is genuine and continuing. The Tribunal accepts they do not live separately and apart on a permanent basis. 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 the time of this decision. Therefore the visa applicant meets cl.309.211 and cl.309.221

Conclusion

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 309 visa.

DECISION

1. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Kira Raif Senior Member