1504252 (Migration)

[2016] AATA 3711

1504252 (Migration) [2016] AATA 3711 (31 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr IBRAHIM MOHAMED IBRAHIM ELDESOUKI

CASE NUMBER:  1504252

DIBP REFERENCE(S):  CLF2012/113676

MEMBER:Kira Raif

DATE:31 March 2016

PLACE OF DECISION:  Sydney

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:

·cl.801.221(2)(c) of Schedule 2 to the Regulations.

Statement made on 31 March 2016 at 12:47pm

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 20 March 2015 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 is a national of Egypt, born in September 1979. The applicant applied for the visa on 7 June 2012 on the basis of his relationship with his sponsor. He was granted the temporary Partner visa in March 2014, however, the application for the permanent visa was refused on the basis that the applicant did not satisfy cl.801.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 31 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

4. At the time the application was made, 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).

5. 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.

6. ‘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).

   Are the parties validly married?

7. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided with his application a copy of the marriage certificate showing the marriage was registered in April 2012. There is nothing to suggest the marriage is not a valid one. The Tribunal is satisfied 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 spousal relationship met?

8. The Tribunal has had regard to the documentary evidence submitted with the primary application and additional evidence that is before the Tribunal, including the couple’s oral evidence.

9. The Tribunal has considerable concerns about the timing of this relationship and the applicant’s previous marriage. The applicant’s evidence to the Tribunal is that he married his first wife in 2006 and a year later he decided to travel to Australia but his wife refused to leave Egypt. The applicant travelled to Australia on a Student visa with the obvious intention of establishing long term residence in Australia. That may indicate that the applicant did not plan to maintain a close relationship with his wife, however, the couple had two children together born in July 2007 and October 2009. The Tribunal is concerned that the couple would decide to have two children together when they did not appear to have any intention of living together. The applicant also claims that his first partner asked him to return to Egypt, but he refused, so she asked for separation. The applicant claims to have separated in early 2010, just a couple of months after his second child was born and a few months before he met the sponsor. The Tribunal is not satisfied that the applicant has been truthful in his evidence concerning his previous relationship, the timing and the reasons for its breakdown. The Tribunal’s concern is that the applicant continues to be in a relationship with his first partner and that the present relationship is to enable the applicant to obtain the Australian visa.

10. The Tribunal has considered the financial aspects of the relationship. The applicant provided evidence of a joint account, initially at NAB and presently at Westpac. Both the applicant and the sponsor informed the Tribunal they also operate different accounts at the Commonwealth bank. The applicant’s salary is deposited into his individual account and the sponsor’s Centrelink payments are also deposited into her account and not the joint account. The applicant informed the Tribunal that they wanted to add his name on the sponsor’s account but were not able to. It is unclear to the Tribunal why the applicant could not be added to the sponsor’s existing account or why the sponsor could not be added to the applicant’s account. It is not clear why there was a need to open a joint account, given that neither party uses it for their income. The Tribunal is concerned that the joint accounts were opened to assist the applicant with the visa application. Both the applicant and the sponsor did ultimately confirm in their oral evidence to the Tribunal that their migration agent advised them it would be better for them to have a joint account. In such circumstances, the Tribunal is not convinced that the joint bank account indicates the couple’s sharing of resources, rather than their willingness to prepare evidence they believe is needed for the visa application.

11. The Tribunal is mindful that there is other evidence of joint financial arrangements, including car registration, insurance and various bills in joint names. Again, the Tribunal cannot be satisfied whether such evidence reflects the couple’s sharing of day to day resources or whether it was simply arranged for the benefit of the visa application.

12. The couple gave broadly consistent evidence about their financial arrangements and the Tribunal is satisfied that there is some degree of pooling of financial resources and sharing of day to day household expenses, even if the Tribunal is concerned about the parties’ motivation in obtaining evidence of such matters. There is no evidence of joint ownership of assets and legal obligations owed to the other party.

13. The applicant and the sponsor provided detailed and consistent evidence about their living arrangements. The Tribunal is satisfied that they live together. The Tribunal also acknowledges the statements from Centrelink and the Department of Housing which refer to the applicant’s residence with the sponsor.

14. There are several statements from third parties provided with the application that attest to their knowledge of the relationship and their belief that it is a genuine one. The couple also presented photographic evidence of their joint social activities. The Tribunal is satisfied that the relationship is known to others and that the parties socialise together and present themselves as being in a married relationship.

15. The Tribunal notes that the parties claim to have committed to the relationship in late 2010 and have been married for four years. The Tribunal is satisfied that in that period they have lived together, socialised together and provided some degree of companionship to each other.

16. There were a number of discrepancies in the parties’ oral evidence to the Tribunal that are of concern. For example,

    a.The applicant informed the Tribunal he and the sponsor lived at their current place since April 12. The sponsor said they lived there since late 2011. The applicant suggested there was no difference in these answers and it was roughly from early 2012 when they started to live together. The Tribunal is mindful that the parties married in April 2012 and the Tribunal would expect the parties to recall whether they commenced living at their current home before or after the marriage.

    b.The applicant said the sponsor never worked other than through her childcare study. The sponsor said she worked as a stacker in a warehouse for three months in 2011. She said she never did any other work. That is, the applicant made no mention of the warehouse work while the sponsor made no mention of the childcare work until reminded about it by the Tribunal. The applicant explained this by stating the sponsor’s warehouse work was unpaid work through the Job Find but the Tribunal’s question was not about paid or unpaid work but work in general.

    c.The applicant said the sponsor completed six months of her course. The sponsor said she had completed three months of the course. The applicant said the sponsor needs 1.5 years to complete the course and the total course duration is 2 years. The sponsor said she needs 9 months to complete the course and the total course duration is 12 months.

    d.The applicant said the sponsor’s course was arranged by Centrelink. The sponsor said the course was referred to by friend and it had nothing to do with Centrelink.

    e.The applicant said he earns $300 - $350 per week. The sponsor said he earns about $250 per week. The applicant explained that it depends on the number of days he works but both the applicant and the sponsor referred to the applicant working three days per week.

    f.The applicant said he stopped providing financial support to the children in 2010. The sponsor said he continued to provide financial support until they married in 2012. The applicant explained that they were not married until 2012 but the Tribunal notes that they claim to have been in a committed relationship since late 2010 and the Tribunal would expect the couple to have better knowledge about each other in such circumstances.

    g.The applicant said the sponsor’s oldest son used to work in a coffee shop but is now unemployed. The sponsor said he continues to work in a coffee shop.

17. These discrepancies, while not necessarily significant, suggest to the Tribunal that the parties do not have adequate knowledge about each other and have not established effective communication.

18. Overall, the Tribunal accepts that the couple have been married for nearly four year and that they live together. The Tribunal accepts that they socialise together and have declared their relationship to others. The Tribunal accepts that there is some degree of financial interdependence, although the Tribunal has formed the view that their documentary evidence relating to the financial aspects was prepared for the purpose of this application. The Tribunal has some concerns about the timing of the applicant’s previous relationship and, given the above discrepancies, about certain aspects of the present relationship. However, on balance, the Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to this relationship.

19. The Tribunal finds that the applicant and the sponsor have a mutual commitment to shared life to the exclusion of others, that their relationship is genuine and continuing and that they live together. Given these findings the Tribunal is satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant meets cl.801.221(2)(c).

    Conclusion

20. 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

21. 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:

    ·cl.801.221(2)(c) of Schedule 2 to the Regulations.

    Kira Raif
    Senior Member