1512199 (Migration)

[2016] AATA 3359

1512199 (Migration) [2016] AATA 3359 (23 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Baha Hauzaree

CASE NUMBER:  1512199

DIBP REFERENCE(S):  OSF2003/197729

MEMBER:Helena Claringbold

DATE:23 February 2016

PLACE OF DECISION:  Sydney

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

Statement made on 23 February 2016 at 3:47pm

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 30 May 2011 to refuse to grant Mr Baha Hauzaree, the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. On 3 December 2003, Mr Hauzaree, applied for the visa on the basis of his relationship with Ms Larissa Claire Kogan, who is his sponsor.

3. At the time of application, Class BC contained two subclasses: Subclass 100 (Spouse) and 110 (Interdependency). The applicant has made claims only for the Subclass 100 visa and does not claim to be in an interdependent relationship as required by Subclass 110. 

4. The criteria for the grant of a Subclass 100 visa are set out in Part 100 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.100.221(2)(b).

5. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.100.221(2)(b) because the delegate was not satisfied that Mr Hauzaree was spouse of Ms Kogan.  On 28 May 2007, Ms Kogan advised the Department that the parties’ relationship had broken down and she was withdrawing sponsorship for the visa application.

6. On 12 March 2015, Mr Hauzaree requested review of the delegate’s decision. On 1 June 2015, the Tribunal found that it did not have jurisdiction in the matter.  On 4 September 2015, the Federal Court determined that the review application to the Tribunal was received within the time limit prescribed and remitted the application for review to the Tribunal for reconsideration.

7. Mr Hauzaree appeared before the Tribunal on 16 February 2016, to give evidence and present arguments. The Tribunal also received oral evidence from Mr John Misto. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The Tribunal has taken into consideration all the evidence in the Departmental case file OSF2003/197729, folios numbered 1-94, Tribunal’s case file 1503558, folios numbered 1-56 and Tribunal file 1512199, folios numbered 1-114 and the oral evidence given at the Tribunal’s hearing.

10. The issue in the present case is whether Mr Hauzaree is the spouse of Ms Kogan as defined in s.5F of the Act.

    What is the background of this case based on the evidence before the Tribunal?

11. Mr Hauzaree was born on 9 February 1968.  He is a national of the United Kingdom. 

12. Ms Kogan was born on 13 May 1975.  She is an Australian citizen (refer: D1).

13. The parties married on 6 November 2003. 

14. On 30 December 2003, Mr Hauzaree was granted a (Temporary) Partner (Provisional) (Class UF) Subclass 309, on the basis of his relationship with Ms Hogan. 

15. On 7 March 2004, he entered Australia as the holder of a Subclass 309 visa.

16. On 28 May 2007, Ms Hogan advised the Department that the parties’ relationship had broken down and that she withdrew her sponsorship for the visa application.

17. On 30 May 2011, the Department refused Mr Hauzaree’s application for a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

18. The Department wrote and tried to contact to Mr Hauzaree several times. Mr Hauzaee claims not to have received any communication from the Department.  He also claims that he became aware of the visa refusal as a result of an FOI request made by his migration agent on 11 February 2015.

19. On 12 March 2015, Mr Hauzaree requested review of the delegate’s decision.

20. On 1 June 2015, the Tribunal found it did not have jurisdiction in the matter.

21. On 4 September 2015, the Federal Court remitted the matter to the Tribunal for reconsideration.

22. On 3 February 2016, Mr Hauzaree wrote to the Tribunal and provided information including a chronology and historical outline of events with regard to the visa application and Tribunal review.  Additionally he provided the information following:

    ·On 4 December 2011, Ms Kogan and Mr Hauzaree became divorced.

    ·On 31 March 2012, Mr Hauzaree married Ms Claire Bromhead.

    ·On 11 December 2012, Ms Bromhead gave birth to Mr Hauzaree’s daughter.

    At the Tribunal hearing

23. Prior to the Tribunal member entering the hearing room a comment was made to the hearing officer that, the member reviewing the decision was the same member who determined that the Tribunal did not have jurisdiction in this matter and did this present a conflict of interest?  After the Tribunal member entered the hearing room, the member informed Mr Hauzarre that the previous Tribunal review and decision was on whether the Tribunal had jurisdiction.  The Federal Court determined that the Tribunal had jurisdiction and that decision is accepted.  As a result the matter before the Tribunal is not one of jurisdiction, but that of Mr Hauzaree’s partner visa refusal made by the Department on 30 May 2011 and as a result no conflict of interest exists.  

24. Mr Hauzarre told The Tribunal that he was unaware of the information in the delegate’s decision record.  The Tribunal told Mr Hauzaree that he had provided the delegate’s decision record to the Tribunal on 12 March 2015.

25. As a result of Mr Hauzaree’s claims that he didn’t know what the decision record contained, the Tribunal put to Mr Hauzaree information in the Delegate’s decision record including the following:

    ·That on 28 May 2007 his sponsor wrote to the Department advising that the parties’ relationship had broken down and sponsorship had been withdrawn for his visa application.

    ·That the Department had made several attempts to contact Mr Hauzaree and had not received a response from either party.

    ·That the delegate in refusing the visa application determined that Mr Hauzaree didn’t meet the legal requirements for the grant of the visa.

    ·That this information indicated that the relationship between himself and his sponsor had ceased.  That this may indicate to the Tribunal that the parties were not in a spousal relationship and may lead the Tribunal to affirming the decision under review.

26. Mr Hauzaree was invited to comment on or respond to the information and was advised he could seek additional time to do so.  Mr Hauzaree responded at the hearing as follows:

27. That he was not aware that his sponsor had written to the Department and had withdrawn sponsorship for the visa application.  He told the Tribunal that the parties’ had a “colourful” relationship and marriage of eight years and the parties had separated several times and then reconciled and recommenced their relationship. 

28. The Tribunal was told that Mr Hauzaree had not received any communication from the Department either requesting information or advising him about the visa refusal and as a result didn’t have knowledge about the visa refusal.  He became aware of the visa refusal when he approached the Department about his status.  The approach to the Department, at that time, was in preparation for his marriage to Ms Bromhead in 2012.

29. In addition he stated that he had been married to the sponsor, from 2003 until the marriage ended in divorce, on 4 December 2011. Mr Hauzaree stated that the parties had not lived together or been in a relationship since their divorce.

30. Mr Hauzaree is shocked by the circumstances that have placed him in his current situation.  He claims that had he been notified correctly by the Department he would have responded to their concerns and would now be a permanent resident in Australia. Instead he lays blame about the circumstances he is in, before the Department as follows: for his previous unlawful status in Australia; for his current visa status; for the circumstances that led, in part, to the failure of his marriage with his sponsor; for the circumstances that led, in part, to the failure of his marriage with Ms Bromhead; for his inability to work; for the financial hardship he  experienced and continued to experience in supporting for himself, Ms Bromhead and their daughter. Mr Hauzaree told the Tribunal that although he continued to support Ms Bromhead and their daughter and has a loving and close relationship with her daughter.

31. Mr John Misto provided the following evidence: that he is a television writer.  He has known Mr Hauzaree for four years and has been astonished at the experience he has been through.  He said he didn’t think things like this could happen.  He further stated that had Mr Hauzaree received the communications from the Department, he would have responded to them, but as he had not been notified correctly, he has been penalised by that error.  In addition, he said that Mr Hauzarree’s FOI request had been abused by the Department and this showed a pattern of neglect, as he still has not received various documents. Also Mr Hauzaree has lived in neglect for eight and a half years; has not been able to work and has been stigmatised.

    Whether the parties are in a ‘spouse’ relationship

32. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, amongst other things, that at the time of this decision, the applicant is the spouse of the ‘sponsoring spouse’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring spouse’ is the person who was specified as the applicant’s spouse or intended spouse in the related Subclass 309 application. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring spouse’ within the meaning of that term.

33. ‘Spouse’ is defined in r.1.15A of the Regulations and provides that a person is the spouse of another where the two persons are either in a married relationship or a de facto 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: r.1.15A(1A). 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), which is extracted in the attachment to this decision.

    Are the parties validly married?

34. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The evidence before the Tribunal is that on 4 December 2011, Ms Kogan and Mr Hauzaree became divorced.  Mr Hauzaree provided evidence that the parties have not lived in a relationship since before their divorce.  At the time of this decision, the evidence before the Tribunal is, that the parties are not married to each other under a marriage that is valid for the purposes of the Act as required by r.1.15A(1A)(a).

    Are the parties in a de facto relationship?

35. As the visa applicant and the sponsor are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a spouse relationship, but they may meet the criteria on the basis of being a de facto partner as defined in r.1.15A(2) of the Act and provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: r.1.15A(2).

36. In forming an opinion on whether they are in a de facto relationship consideration must be given 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).  On these aspects the Tribunal has considered all the evidence before it and is satisfied that the matters are not relevant, because the evidence before the Tribunal is that the parties divorced on 4 December 2011 and have not been in a relationship since that time.  On 31 March 2012, Mr Hauzaree married Ms Claire Bromhead.

    FINDINGS

37. The Tribunal has considered Mr Hauzaree’s and Mr Misto’s evidence and the evidence in the files about the notification process between Mr Hauzaree and the Department and the ramifications as a result of that process.  The Tribunal has noted this evidence; however it will confine its findings having regard to the spousal relationship and the de facto relationship between the parties, at the time of decision.

38. The Tribunal has considered all of the evidence individually and as a whole.  The Tribunal is not satisfied that at the time of decision the sponsor and the applicant had a mutual commitment to a shared life as spousal partners to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis.  Because the evidence before the Tribunal is that the applicant and the sponsor divorced in 2011 and have not been in married relationship or a de facto relationship since that time.  The applicant therefore does not meet the requirements of r.1.15A(1A) of the Act or r.1.15A(2) of the Act.          

39. For these reasons, the Tribunal is not satisfied that at the time of decision the parties were in a spousal relationship within the meaning of r.1.15A of the Act or a de facto relationship within the meaning of r.1.15A(2) of the Act. The Tribunal further finds that, at the time of decision, the parties are not in spousal or de facto relationship.

40. Given these findings the Tribunal is not satisfied that at the time of this decision the parties are in spousal or de facto relationship.

41. There is no evidence before the Tribunal that the applicant meets the requirements of any of the other subclauses.

42. The Tribunal therefore finds that at the time of decision, the applicant is not in a spousal or de facto relationship with the sponsor, within the meaning of r.1.15A(1A) of the Act, or r.1.15A(2) of the Act, who is an Australian citizen. As a result the applicant is not the spouse or de facto partner of the sponsoring partner and does not meet the requirements of cl.100.221(2)(b) of Schedule 2 to the Regulations. Therefore, the applicant does not meet cl.100.221 or cl.110.221.

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

    Other Considerations

44. The Tribunal at the hearing provided Mr Hauzaree a copy of the delegate’s decision record.

45. Mr Hauzaree requested that the Tribunal seek Ministerial Intervention in this matter.  After consideration the Tribunal has determined not to seek Ministerial Intervention but urges Mr Hauzaree to take the necessary steps to do so.

    DECISION

46. The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

    Helena Claringbold
    Member

    
    

    ATTACHMENT  - Extract from Migration Regulations 1994

    1.15ASpouse

    …

    (3)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:

    (ad)a Partner (Migrant) (Class BC) visa; or

    (ae)a Partner (Provisional) (Class UF) visa; or

    (af)a Partner (Residence) (Class BS) visa; or

    (ag)a Partner (Temporary) (Class UK) visa;

    the Minister must have regard to all of the circumstances of the relationship, including, in particular:

    (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 party to the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day‑to‑day household expenses;

    (b)the nature of the household, including:

    (i)       any joint responsibility for care and support of children, if any; and

    (ii)      the parties’ living arrangements; and

    (iii)     any sharing of responsibility for housework;

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married or in a de facto relationship with each other;

    (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;

    (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)In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).

    (5)If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.