TOURI (Migration)

[2021] AATA 4570

TOURI (Migration) [2021] AATA 4570 (8 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs NASRIN TOURI

VISA APPLICANT:  Mr Rajab Ali NAZARI

CASE NUMBER:  1829762

DIBP REFERENCE(S):  BCC2017/4798621

MEMBER:Antoinette Younes

DATE:8 November 2021

PLACE OF DECISION:  Sydney

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(2) of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations.

Statement made on 8 November 2021 at 10:28 AM

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – valid marriage – limited financial arrangements – social aspects of the relationship as culturally appropriate – evidence of regular communication – decision under review remitted  

LEGISLATION

Marriage Act 1961
Migration Act 1958, ss 5, 12, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206
Li v MIAC (2007) 96 ALD 361

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 23 August 2018 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant (applicant) applied for the visa on 15 December 2017 on the basis of his relationship with his sponsor, the review applicant (sponsor). 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 (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 309.211(2).

4. The applicant appeared before the Tribunal on 3 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from a witness.

5. The sponsor 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether cl 309.211(2) is met.

   Whether the parties are in a spouse or de facto relationship

8. Clause 309.211(2) and cl 309.221 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.

9. ‘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 of the relationship, the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in reg 1.15A(3) of the Regulations, 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?

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

11. At the time of application, the applicant claimed that he and the sponsor have been in a married relationship since their marriage on 25 August 2017, when the sponsor went to Iran where the applicant resides.  The applicant indicated that he is divorced and that the sponsor is a widow.

12. In support of the visa and review applications, the applicant provided documents including a translated Marriage Certificate issued by the Embassy of Afghanistan in Tehran on 5 November 2017 referring to the marriage on 25 August 2017, Form 888 Statutory Declarations of witnesses, letters of support, telephone and text message records, photographs, airline tickets, medical and psychological reports concerning the sponsor, and a Centrelink letter dated 25 October 2021.

13. In order to determine whether a marriage is valid for the purpose of the Act, consideration must be given to the Marriage Act 1961 (Cth) (Marriage Act), which is largely incorporated into the Act for this purpose by s 12.[1] The Marriage Act defines marriage as the union of two people (of any gender) to the exclusion of all others, voluntarily entered into for life.[2] The Marriage Act requires marriages to be solemnised,[3] and has other requirements for their validity depending on whether they were solemnised under Australian or foreign law. Part VA of the Marriage Act provides for the recognition of foreign marriages.[4] Essentially, foreign marriages that are recognised under the law of the country in which they are solemnised will be recognised in Australia as valid, subject to five basic exclusions which are similar to the grounds on which marriages solemnised in Australia are void, namely:[5]

    ·     either of the parties was married to someone else and that other marriage was recognised in Australia as valid;

    ·     the parties are within a prohibited relationship;

    ·     the consent of either of the parties is not a real consent;

    ·     where one party was domiciled in Australia at the time of the marriage – either of the parties was not of marriageable age;

    ·     the marriage is voidable under the law under which the marriage took place.

    [1] See Li v MIAC (2007) 96 ALD 361 at [10].

    [2] Marriage Act s 5.

    [3] Marriage Act ss 23A, 23B, 40, 41, 48, 73.

    [4] The object of part VA is to give effect to Chapter II of the Convention on Celebration and Recognition of the Validity of Marriages 1978: see s 88A of the Marriage Act. This includes same-sex marriages solemnised outside of Australia and same-sex marriages solemnised by or in the presence of a foreign diplomatic or consular officer in Australia that are recognised as valid in the relevant overseas country. Section 88D(4), 88EA and the previous definition of marriage in s 5(1) of the Marriage Act as being a ‘union of a man and a woman’ prohibited the recognition in Australia of foreign same-sex unions. These provisions were repealed or amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) (No 129, 2017) with effect from 9 December 2017 and applicable to all live applications at that date where it is necessary for the Tribunal to determine whether or not two persons are in a spouse relationship.

    [5] See Marriage Act ss 88B, 88C, 88D and 88E.

14. The Tribunal is satisfied on the evidence, namely the Marriage Certificate issued by the Embassy of Afghanistan in Tehran on 5 November 2017 referring to the marriage on 25 August 2017, that the applicant’s marriage is recognised by the authorities of Afghanistan, that neither party was married to another person at the time, that the parties are not in a prohibited relationship, that the parties were of a marriageable age, and that the marriage is not void. It follows that the Tribunal finds that 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?

15. The Tribunal needs to consider the matters in reg 1.15A of the Regulations, such as mutual commitment to a shared life as a married couple to the exclusion of all others, whether the relationship is genuine and continuing, and whether the couple live together, or do not live separately and apart on a permanent basis. In forming an opinion about these matters, regard must be had to all 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.

    Financial aspects of the relationship

16. Since their marriage in 2017, the applicant has continued to live in Iran and the sponsor in Australia.  The sponsor has travelled to Iran on two occasions in 2017 and late 2019 for approximately a month on each occasion.  The Tribunal accepts that due to their circumstances, the couple has not had the opportunity to join their assets or share liabilities.  Both parties gave evidence that the applicant has saved about AUD50,000 which they consider to be their joint asset to be used to establish a business if and when the applicant is granted a visa.  The sponsor has provided evidence of gifts given to the applicant.  Although there is limited evidence of joint ownership of assets, joint liabilities, or pooling of financial resources, the Tribunal does not consider that to be problematic given the parties’ circumstances.

17. The Tribunal is satisfied that the couple’s situation, namely residing in different countries, has limited their ability to pool resources or to have joint assets or liabilities, but is nevertheless consistent with being in a genuine relationship.

    Nature of the household

18. The parties live in different countries.  The sponsor has travelled on two occasions to be with the applicant and they provided photographs and other evidence in support.  Due to COVID-19, the sponsor has not been able to travel more often.  The couple provided photographs of the applicant and the sponsor together and with others.  Due to their mature age, they are no longer willing or able to have children.   

19. The Tribunal is satisfied that despite living in different countries, the parties are in a genuine and continuing relationship.

    Social aspects of the relationship

20. The Tribunal asked the sponsor questions about the fact that the couple married on the same day as their first physical meeting.  She explained that the couple had been communicating previously over the telephone.  In submissions and in evidence, it was explained that from cultural and religious points of view, it would have been inappropriate for the couple to be together if unmarried.  The Tribunal got an impression that the sponsor was open about her explanations and did not attempt to exaggerate the development of the relationship.  She explained that the applicant’s nephew spoke to her about the applicant.  The Tribunal queried the sponsor as to whether the marriage is for migration purposes rather than being a genuine relationship.  She stated that she wants to be with applicant and live as a married couple in Australia.  She stated that the applicant is caring, supportive and that he is aware of her health and other issues.

21. The Tribunal referred to the letter from Centrelink noting that the sponsor does not have a partner.  She stated that she thought that as the applicant is not in Australia, she did not have to disclose the marriage.  She undertook to correct the record.  The Tribunal is concerned about this aspect but it is not the Tribunal’s role to investigate such matters or make comments as that would be overstepping its jurisdiction.  On balance, the Tribunal’s concerns about this aspect do not outweigh the probative value of the corroborative evidence provided by the applicant.

22. Although there is limited evidence of representation to others as a married couple, there are photographs of the couple with family members and friends.  There are Forms 888, letters of support and a witness gave evidence about the genuine nature of the relationship.

23. The Tribunal is satisfied on the evidence provided that the parties have represented themselves to other people as being a married couple who have been in a genuine relationship.

    Nature of persons' commitment to each other

24. The couple has been in a relationship since 2017.   During the hearing, they expressed their commitment to one another, as well as their desire to live together as a married couple in Australia.  The Tribunal is satisfied that they see the relationship as being long-term.

25. Having considered the above matters, the Tribunal finds that the parties have 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 or not separately and apart on a permanent basis. The sponsor is an Australian citizen. The Tribunal therefore finds that the requirements of cl 309.211(2) and cl 309.221 are met.

26. 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

27. 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(2) of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations.

    Antoinette Younes
    Senior 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).