1504544 (Migration)

[2016] AATA 4005

1504544 (Migration) [2016] AATA 4005 (3 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohanna Jameel khader

CASE NUMBER:  1504544

DIBP REFERENCE(S):  CLF2015/13998

MEMBER:Rieteke Chenoweth

DATE:3 May 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 of Schedule 2 to the Regulations.

Statement made on 03 May 2016 at 10:39am

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 applied for the visa on 1 August 2012 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 was not satisfied that the applicant and the sponsor were in a genuine and committed relationship.

4. The applicant appeared before the Tribunal on 2 May 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Mona El-Omari, the wife of the applicant and the sponsor in this application and Ms Christine Houlin, a friend and former neighbour of the sponsor. 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 matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant and the sponsor  have a mutual commitment to a shared life as husband and wife to the exclusion of all others and the relationship between them is genuine and continuing.

   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. The couple were married on 16 June 2012.  There is a copy of the marriage certificate on the Department file.  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 spousal relationship met?

   Financial aspects of the relationship

10. The applicant told the Tribunal his wife works 5 days per week and he looks after the household. When he was in Syria he worked as a painter but he has found it difficult to find work in Australia because of his lack of English. He said he had tried to work for an Arabic speaking employer but he had not been paid and so he had left.  He thought he still had some outstanding wages owed to him.

11. The Tribunal put to the applicant that in the decision record the delegate commented that in the statements both he and his wife had stated that they had a joint bank account which they both used to save money.  They had submitted a bank statement from the Commonwealth Bank which showed that over a 6 month period there was one deposit of $31.00. There are small withdrawals from the account which do not indicate the account is used for household expenditure.

12. The applicant said that his wife manages the money. He uses small amounts to pay for things such as train fares. He has very limited numerical skills and has difficulty counting. The sponsor agreed that the joint account was not used at the time they made the statement.  She said however that she had an account in her name into which her wages were put and that they both lived on this money.

13. The applicant did not know how much the sponsor had paid for the unit she had purchased in which they now live.  He did not know how much the mortgage repayments were either. However, as set out below, the Tribunal accepts that the applicant has limited education and has difficulty with numbers.

14. The Tribunal is satisfied that the applicant and the sponsor live on the income of the sponsor from her earnings.

    Nature of the household

15. The applicant said that he does most of the housework and the cooking while his wife goes out to work. He said his wife was tired after working all day. His wife works in a shop where she sells make up and stacks shelves. He did not know the name of the shop where she worked but knew that she had previously worked in Parramatta.  He had little idea of how they would cope financially when his wife, who is presently pregnant, gives up work after the birth of their baby in July 2016. He hoped he would be able to find work as a painter although he recognised that this would be difficult because of his lack of English skills.

16. The sponsor also gave evidence that the applicant does most of the housework and cooking.  She said that she was tired when she returns home from work and he looks after her. She said that she hoped the applicant would be able to find work in the future but recognised that this would be difficult given his problems in learning Endlish. 

    Social aspects of the relationship

17. Both the applicant and the sponsor said they mostly socialise with family members.  They do not go out very often.  For the sponsor’s birthday last year the applicant said that they had been to the sponsor’s family home and celebrated there.  The sponsor however said that they had actually stayed home and had a cake and that the applicant was mixing his recollection up with their anniversary celebrations when they had got together with her family members. The Tribunal accepts that the applicant was wrong in his recollection about his wife’s birthday but this was a genuine mistake.

18. The applicant submitted a number of photographs of the couple together with friends and family members in social situations.

19. At the hearing, Ms Christine Houlin, who gave evidence as a witness, said she had known the sponsor for 20 years as she was a neighbour of the sponsor’s family.  She had attended the wedding of the couple and continued to see them on a social basis.  She gave evidence that she considered the relationship to be genuine and continuing.  

    Nature of persons’ commitment to each other

20. The applicant said he had met the sponsor when she visited Syria.  Both he and the sponsor said that the meeting between them had been arranged by a cousin of the sponsor who is now also her brother-in-law. Each of them was seeking a spouse and the family members considered that they should meet with a view to seeing if they wanted to form a relationship. Both the applicant and the sponsor said that when they met at the cousin’s house they talked together and decided that they liked each other.  They both indicated that they very quickly decided that they wanted to marry.

21. The applicant and the sponsor said that their family members were supportive of the relationship. They lived together in a granny flat at the home of the sponsor’s parent’s until 2015 when the sponsor’s father became seriously ill and so they moved out. The sponsor purchased a unit which they moved into in September 2015.  She said that she had previously owned another unit which she rented out as an investment.  When her father became seriously ill they had to move out of the family home and she sold the other unit and put the profit she had made into the new unit.  Her family also loaned her some money and she purchased the present home.  She said that at present the unit is in her name as the applicant is not able to own property in Australia but she plans to put it in joint names in the future when the visa is granted.

22. Before the hearing the applicant submitted documentary evidence showing that the sponsor is pregnant.  The child is due in July 2016.

    Any other relevant considerations

23. The Tribunal notes that the applicant had little knowledge of the amount the sponsor had paid for the unit they live in or the rate of repayments.  He did not know how much she earned or what plans they had for their financial future when the baby is born. However whereas this may indicate a lack of knowledge in some relationships the Tribunal accepts that in this relationship the sponsor is aware that the applicant has learning problems and has had a limited education.  Both the applicant and the sponsor gave evidence that the applicant has limited literacy in Arabic and has difficulty with numeracy. He is effectively illiterate and innumerate. It considers that the lack of knowledge the applicant has about the couple’s financial affairs and the difficulty the applicant has in obtaining work is in large part due to this. The applicant did not know the name of the business his wife is employed in although he knew that she sold make up. The sponsor told the Tribunal she worked in a chemist shop selling make up, stocking shelves and as a cashier.  The Tribunal accepts that the sponsor is aware of the applicant’s educational difficulties and accommodates these. It  notes that the couple have been in a relationship for over 4 years and they are expecting their first child in July 2016. They both expressed an ongoing commitment to each other and their expected child.

24. The Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to each other to the exclusion of all others.  It is satisfied that the relationship between them is genuine and continuing and they live together or do not live separately and apart on a permanent basis.

25. 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

26. 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 of Schedule 2 to the Regulations.

    Rieteke Chenoweth
    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).