1508440 (Migration)

[2016] AATA 4850

1508440 (Migration) [2016] AATA 4850 (27 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahmed Ezzat Shaaban Mahmoud

CASE NUMBER:  1508440

DIBP REFERENCE(S):  CLF2014/20781

MEMBER:Kira Raif

DATE:27 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 27 June 2016 at 2:09pm

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 520 (Partner (Temporary)) – Reason for breakup of previous relationship – Strong desire to live in Indonesia – Financial arrangements – Joint social activities – Business operation

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15A, Schedule 2 cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 22 June 2015 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Egypt, born in October 1982. He applied for the visa on 10 February 2014 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 and cl. 820.221 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 27 June 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. At the time the application was made, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

5. Clauses 820.211(2)(a) and 820.221 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.

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 parties’ 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 January 2014. There is nothing to suggest the marriage is not valid. 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 spousal relationship met?

8. The Tribunal acknowledges that a substantial amount of documentary evidence has been presented with the application and to the Tribunal, which seeks to address the various aspects of the relationship. However, the Tribunal is of the view that such documents and evidence can be obtained even if the relationship is not genuine. Thus, the fact that the parties reside at the same address does not mean they have established a joint household. The fact that they put their names on various documents, bills or receipts does not mean they genuinely share their financial resources. The fact that they took some photographs together does not mean they are committed to the relationship. That is, if the relationship was not genuine but a person wished to obtain evidence to convince Immigration that it was, the same documents could have been obtained. The Tribunal has given due weight to the various documents submitted with the primary application and to the Tribunal but such evidence is insufficient to satisfy the Tribunal that the relationship is a genuine one.

9. The Tribunal has some concerns about the very quick inception of this relationship. The parties claim they first met in July 2013 and the applicant proposed in early October 2013. The couple held the religious marriage in October 2013 and the civil marriage in January 2014. The applicant’s evidence to the Tribunal is that his Student visa was due to expire in April 2014, only four months after the formal marriage and a short time after this application was made. The applicant claims there was no link between the expiry of his Student visa and the relationship but the Tribunal considers the timing of these events of concern, particularly given the applicant’s evidence that he has not undertaken any formal study since 2011, which may have prevented him from being able to obtain a further Student visa. The Tribunal is concerned that the present relationship was arranged to enable the applicant to remain in Australia.  

10. The Tribunal finds the applicant’s description of the breakdown of his relationship with his former spouse unpersuasive. The applicant said that his relationship with his first partner was initially going well. He said that later on the wife wanted to return to Egypt but he preferred to stay in Australia. He said his preference to stay in Australia and his wife’s preference to return to Egypt was the biggest problem that caused the breakdown of the relationship. The applicant claims the relationship with the first partner ended around June or July 2011. The Tribunal notes that by that time the ex-partner was about seven months pregnant. The Tribunal finds it implausible that the couple would have genuinely decided to split up, at that point of their relationship, when they had a young child and expected the second child, simply because the applicant wanted to stay in Australia and his partner wanted to return to Egypt. This is particularly so as the applicant was in Australia on a temporary Student visa and had not been undertaking any study since 2011. He does not claim that by that time he was trying to establish himself in Australia. He had no significant employment commitments (he claims he was working 20 hours per week). He does not claim to have family commitments in Australia. He had no real study commitments as he had given up on his formal study by that time. There does not appear to have been strong reasons for the applicant to remain in Australia. The Tribunal is not satisfied that he would have given up on his relationship with his partner, and two children, mainly because she wanted to leave Australia and he did not.  The Tribunal is not convinced that the applicant has been truthful in his description concerning the first relationship.

11. The applicant’s evidence also implies that the applicant had a strong desire to live in Australia and that desire outweighed his family obligations at the time of the separation. Given the applicant’s strong desire to live in Australia, the Tribunal is concerned that the present relationship was entered into solely to enable him to do so.

12. The applicant informed the Tribunal that his relationship with his former partner ended in mid-2011. However, he did not formally divorce until December 2013 and that was the time he entered marriage with the sponsor. When asked why the divorce was delayed, the applicant informed that their families kept interfering and wanted them to be reunited. However, he also said there was no chance of their reconciliation, in which case there was no reason to delay the divorce proceedings. The applicant said that he wanted the families to have a chance to convince them to get back together but also that he had no interest in reconciliation. It is unclear why the applicant would wait until the end of 2013 to formally divorce his former spouse if he claims there were irreconcilable differences from 2011.

13. The Tribunal has considered the financial aspects of the relationship. The applicant presented evidence of a joint account, which is operated for daily expenses, and of various bills and other arrangements in joint names. The Tribunal accepts that the couple made arrangements to share their finances. The Tribunal also acknowledges their evidence that they are saving money for the purchase of a house and the representative’s submission that this implies the relationship is a genuine one and is viewed as a long term one. However, as noted above, the Tribunal is of the view that the couple could have made the same arrangements if they simply sought to establish evidence for the purpose of the visa application. The Tribunal places weight on the fact that in oral evidence, they gave inconsistent answers about the amounts in the various accounts. The review applicant informed the Tribunal that he has no access to the sponsor’s personal account and does not know how much money is in it.

14. The Tribunal questioned the parties about the applicant’s business. The applicant informed the Tribunal that he has no paid employees. The applicant said that he has several trainee teachers working for him but they are not paid.  The sponsor said the business has five paid teachers. The applicant explained this discrepancy by stating that he does not pay salary to the teachers but he buys other things for them in lieu of salary. The Tribunal notes that the applicant’s initial evidence is that these teachers are unpaid while the sponsor referred to a salary of $20 an hour. The Tribunal notes that both were asked whether there are paid employees in the business and the two provided different answers. Further, the applicant said the sponsor is responsible for managing the payments in the school and the paperwork. The sponsor said the applicant is responsible for the salary payments.

15. Thus, despite operating a joint account and having joint names on a variety of bills and other purchases, the Tribunal is not convinced that the partners have adequate knowledge about each other’s financial arrangements.

16. There are several statements from third parties submitted with the primary application and to the Tribunal, as well as photographic evidence. In oral evidence the couple spoke about their social activities. The Tribunal is satisfied that the couple represent themselves to others as being married. The Tribunal is satisfied friends and acquaintances believe the relationship to be a genuine one. The Tribunal is satisfied the couple plan and undertake joint social activities.

17. The Tribunal has considered the nature of the household. The parties gave broadly consistent evidence about their living arrangements and the Tribunal is satisfied that they live together.

18. The Tribunal has considered the nature of the parties’ dealings with their respective children. The applicant had some knowledge about the sponsor’s two daughters but had little information about the younger daughter’s course, such as the duration of the course, or when it commenced. The Tribunal is not convinced that he has a particularly close relationship with the sponsor’s daughters. The Tribunal accepts that the applicant and the sponsor both travelled to Malaysia and spent time with the applicant’s parents and children. There is no evidence that they otherwise share responsibilities for the care and support of children.

19. The Tribunal accepts that the parties have known each other for nearly three years and were formally married in January 2014, some two and a half years ago. The Tribunal accepts that they lived together in that period and the Tribunal also accepts that the sponsor supports the applicant in his business.

20. However, the Tribunal has some concerns about aspects of their oral evidence which cause the Tribunal to question their mutual commitment to the relationship. For example,

    a.The applicant said the sponsor works at the Australian International School of Sydney. The sponsor said she works for the Australian Islamic College. The applicant said that he remembered the acronym but not the name. He said that he was familiar with the school because he worked there himself, which does not explain why he could not state the name of the school where the sponsor has worked for seventeen years.

    b.The applicant outlined to the Tribunal the study he has completed in Australia. The sponsor did not know what courses the applicant has completed or undertaken in Australia. The applicant said he stopped studying in 2011. The sponsor thought he continued to study until they held the religious marriage in 2013. The review applicant explained that he was doing Islamic studies until 2013 but not formal study. He said he did not discuss his past study with the sponsor because he did not think it was important.

    c.The applicant said the sponsor speaks to his family on special occasions, for example during Eid. The sponsor said she speaks to his family once or twice a week. The review applicant explained that the sponsor has a good relationship with his family and speaks to his mother frequently but his reference to special occasion is to when they speak to his family together, when he is present. The Tribunal notes that its question was about the sponsor’s contact with his family, not about such contact in his presence.

21. The review applicant explained to the Tribunal the reasons why his previous marriage ended. He said that the relationship ended before his youngest child was born. The sponsor said she did not know why the applicant’s previous marriage ended, stating they did not discuss the matter. She said the relationship ended after the youngest child was born. Both partners informed the Tribunal that they did not feel comfortable talking about the previous relationships.

22. The Tribunal asked the parties both why it took the applicant a long time to divorce. The applicant said there was no need to divorce and the family tried to intervene and help them reconcile. The sponsor said they started the divorce proceedings earlier but it took a long time to get the papers. The applicant explained to the Tribunal that it would not give a good impression to tell the sponsor about the reconciliation, so he did not tell her.

23. The Tribunal also questioned the parties about the applicant’s contact with his own children. The applicant’s evidence to the Tribunal is that he has no direct contact with the ex-wife and he only talks to the children about once a month when they visit his parents. The sponsor said that he has daily contact with his ex-wife to talk about the children. The review applicant explained this discrepancy by stating that it is a sensitive matter for the sponsor and she does not ask him about who he talks to. The review applicant said they do not discuss it because it is sensitive. The Tribunal considers that explanation problematic. Firstly, it does not explain why the applicant mentioned speaking to his children once a month while the sponsor believes he does so daily. Secondly, and more significantly, the Tribunal is concerned that the parties are reluctant to have a conversation about what they consider to be a sensitive matter. Their unwillingness to discuss such matters indicates that they do not rely on each other for comfort and support.

24. The Tribunal acknowledges that the inconsistencies in evidence are minor and of little significance. The Tribunal acknowledges that there is a great amount of documentary evidence concerning the various aspects of the relationship and that the parties’ oral evidence to the Tribunal was broadly consistent. The Tribunal acknowledges that many aspects of the relationship point to the existence of a genuine and committed relationship. Against these considerations, the Tribunal has serious concerns about the circumstances of the break-up of the applicant’s previous relationship and the reasons for it. The Tribunal is concerned about the applicant’s motivations in entering this relationship because the Tribunal is concerned that his desire to remain in Australia was the primary, or the sole, consideration.

25. Overall, the applicant has not satisfied the Tribunal that his relationship with the sponsor is genuine. The Tribunal is not satisfied that the applicant and the sponsor have a mutual commitment to shared life to the exclusion of others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied the applicant is the spouse of the sponsor. He does not meet cl. 820.211 and cl. 820.221.

    Conclusion

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

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Kira Raif
    Senior Member