1420347 (Migration)

[2016] AATA 3177

1420347 (Migration) [2016] AATA 3177 (29 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr AHMAD MOHAMAD EL ATER

CASE NUMBER:  1420347

DIBP REFERENCE(S):  CLF2010/173718 CLF2014/143338

MEMBER:Michael Cooke

DATE:29 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

Statement made on 29 January 2016 at 10:12am

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 November 2014 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 17 December 2010 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 (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. Relevantly to this matter the primary criteria include cl.801.221.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the delegate did not find the parties were in a genuine and continuing spouse relationship.

4. The applicant appeared before the Tribunal on 28 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from a supporter of the applicant - Mohammed  El Kochen. The sponsor did not attend the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is the continuing nature of the parties’ relationship.

   SPOUSE/DEFACTO (cl.801.221(2))

   Whether the parties are in a spouse or de facto relationship

7. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this 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 sponsor is the ‘sponsoring partner’ of the applicant.

8. ‘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 husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a) - (d). In forming an opinion as to these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’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.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. On the evidence (an Australian Marriage Certificate), 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).

10. At the hearing the Tribunal observed that the sponsoring wife of the applicant was not present. The Tribunal asked the applicant whether his wife would be attending and he indicated she would not be doing so. The Tribunal then asked the applicant whether the marriage of the parties was over - irretrievably. He informed the Tribunal that it was. Certain issues and conflict in his wife’s (Christian) family over the applicant’s Muslim faith had led to the separation and breakdown of his marriage of 5 years standing. The issues were so powerful that they made the possibility of reconciliation impossible.

11. The Tribunal has considered Reg. 1.15A(3) and the full circumstances of the relationship including the parties financial aspects of the relationship which did not indicate financial pooling between the parties. The applicant informed that his wife’s child had been living with them but a decision had been made for her to live with her grandparents. The difficulties in the marriage from a religious perspective have eventually led to there no longer being the mutual commitment to a shared life that is a requirement of a spouse relationship. The applicant indicated that the marriage was not a long-term proposition even though he still loved the sponsor.

12. The Tribunal finds from the information vouchsafed by the applicant in the hearing that the applicant no longer meets the definition of spouse of his sponsor as defined by s.5F of the Act at time of this decision.

13. Given these findings the Tribunal is not satisfied that at the time of this decision the parties are in a spousal relationship. Therefore, the applicant does not meet cl.801.221(2)(c).

14. Furthermore, the applicant has not claimed and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).

15. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

16. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Michael Cooke
    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).