1516238 (Migration)

[2016] AATA 4331

1516238 (Migration) [2016] AATA 4331 (6 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr John Lakkis (aka Atouf El Lakkis)

VISA APPLICANT:  Mrs Mira Rizk

CASE NUMBER:  1516238

DIBP REFERENCE(S):  OSF2014007004

MEMBER:P. Wood

DATE:6 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 06 September 2016 at 4:25pm

STATEMENT OF DECISION AND REASONS

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 September 2015 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant Mira Rizk applied for the visa on 17 November 2014 on the basis of her relationship with her husband and sponsor, the review applicant John Lakkis, also known as Atouf El Lakkis. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3.    The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied that the relationship between the visa applicant and the review applicant meets the definition of spouse in s.5F of the Act.  A copy of the delegate’s decision was provided to the Tribunal by the review applicant.

4.    The review applicant appeared in person before the Tribunal on 17 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via conference telephone and in person from two witnesses who are both friends of the review applicant.

5.    The review applicant was represented in relation to the review by his registered migration agent.

6.    The delegate noted the general lack of knowledge the parties had of each other’s lives, and stated that the number of contradictions and inconsistencies in their answers raised doubts about the claims they made regarding the nature of their relationship. For the following reasons, the Tribunal shares this view and has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

7.The issue in the present case is whether the applicant is the spouse of the sponsor. 

Whether the parties are in a ‘spouse’ relationship

8.Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision the visa applicant is the spouse of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.  In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

9.‘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 or de facto relationship. Persons are in a de facto relationship if they are not validly married to each other. 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 visa applicant’s and review applicant’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?

1. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The delegate’s decision records that the applicants were married on 14 April 2014 (execution date). The review applicant told the Tribunal that he was married on 29 August 2012. The visa applicant told the Tribunal that the marriage occurred on 22 August 2012, and later 29 August 2012. There is nothing in the information before me to cast doubt on the validity of the marriage, and it was not disputed by the delegate. The Tribunal accepts that the visa applicant and the sponsor were validly married, and finds that the marriage is valid for the purposes of the Act as required by s.5F(2)(a).

Other matters

1. The male review applicant John Lakkis (aka Atouf El Lakkis) is a Lebanese born Australian citizen born in 1951. The visa applicant Mira Rizk is a 33-year-old Lebanese female born in 1983. The review applicant has an ex-wife who he was married to from 10 November 1973 until 19 May 2013. There are two children of that relationship. The review applicant claims to have met the visa applicant in a restaurant in Lebanon in 2009 or 2010 and maintained regular contact since at least 2011.

2. The Tribunal must consider all the circumstances of the relationship, (including the criteria specified in r.1.15A) in determining whether the parties are in a “married relationship” as defined by s.5F, and whether the relationship falls within the definition of “spouse”.

3. In assessing these issues, the Tribunal has had regard to all documents on the Departmental file as well as the documents submitted to the Tribunal.

The financial aspects of the relationship

1. The delegate noted concerns in relation to the parties’ knowledge of their respective financial situations and conflicting information provided at interview in relation to the financial aspects of the relationship.

2. The Tribunal is concerned that at interview with the Department the parties provided conflicting information in relation to the review applicant’s employment circumstances, work schedule and income. The Tribunal is also concerned that at interview with the Department the parties provided conflicting information in relation to their respective work plans.

3. The Tribunal questioned the parties in relation to their financial situation and the parties generally gave consistent answers. The Tribunal was however concerned that the answers appeared rehearsed.

4. The review applicant gave evidence to the Tribunal that he is presently unemployed and in receipt of the Commonwealth Age Pension. The review applicant told the Tribunal that he most recently worked in the wholesale florist industry and, before that, as a taxi driver for 10 years. Whilst confirming his previous employment in the wholesale florist industry, the visa applicant however had no knowledge of the review applicant’s previous employment as a taxi driver.

5. The parties provided the Department with numerous money transfer receipts to evidence financial support by the review applicant to the visa applicant. The Tribunal notes that the review applicant gave evidence to the Tribunal that the source of the funds he provides to the visa applicant is money which he received from the sale of a house he previously owned in St Albans. The visa applicant however had no knowledge of these savings.

6. Taking into account all the information before it concerning the financial facets of the relationship the Tribunal ultimately attaches limited weight to this aspect of the relationship since the parties are currently living in separate countries.

The nature of the household

1. The Tribunal notes the delegate’s concerns as recorded in the decision record regarding the nature of the household. The delegate was concerned about the parties’ knowledge in regards to each other’s living arrangements. The Tribunal questioned the review applicant about the visa applicant’s living arrangements and he stated that she is presently sharing a house with several family members. The Tribunal questioned the visa applicant about the review applicant’s living arrangements and she confirmed that he lives alone in a one-bedroom rental unit in Melbourne.

2. The review applicant gave evidence that he and the visa applicant resided together during a one-month honeymoon after the wedding.

3. Both applicants gave evidence that they wish to cohabitate together in the future in the review applicant’s one bedroom rental unit.

4. In relation to the parties’ household, as they do not presently have a joint household this factor has been given less weight in the consideration of whether the visa applicant is the spouse of the review applicant.

The social aspects of the relationship

1. The delegate had concerns whether the relationship is socially recognised.

2. The Tribunal has had regard to how the parties represent the relationship to others via social media. The Tribunal viewed the parties’ respective Facebook pages and notes that neither page acknowledges the relationship in any meaningful way. The Tribunal identified Facebook pages belonging to the review applicant in the names of both ‘Atef Lakkis’ and ‘John Lakkis’. When questioned by the Tribunal, the review applicant gave evidence that he does not use Facebook regularly. The Tribunal accepts this may be the case, however is puzzled why the visa applicant’s Facebook page does not acknowledge the relationship given that the visa applicant’s Facebook page indicates regular use by her.

3. The Tribunal questioned the visa applicant about this and she acknowledged using Facebook “all the time” and “everyday” to communicate with her friends. The visa applicant claimed to have posted wedding photos on Facebook, but when asked why they were no longer on her page, the visa applicant said that she had deleted them. When asked by the Tribunal why she had deleted them, and how frequently she ordinarily deletes photos from Facebook, the visa applicant was unable to offer any explanation, saying words to the effect that “frankly this is the first time”. The Tribunal considers this explanation unlikely.

4. The Tribunal has had regard to the evidence of the review applicant’s two witnesses Mr Frank Nirta and Mr Jehad Ibrahim. Both witnesses have known the review applicant for many years and gave evidence in relation to their observations of the relationship between the parties. Mr Nirta was keen to press upon the Tribunal that the visa applicant lives in a small house with nine family members.

5. The parties provided the Tribunal with wedding and other photographs depicting themselves in the presence of a small number of other persons. There is limited evidence that the parties undertake joint social activities more broadly.

6. Considering the evidence of social aspects of the relationship as a whole, in the absence of credible evidence suggesting that the applicants have represented themselves as being married to each other in public, other than to a limited number of individuals, the Tribunal places limited weight on this aspect of the relationship. 

Nature of persons’ commitment to each other 

1. The Tribunal has had regard to the fact that the relationship has supposedly been on foot for a number of years and that the parties claim to have maintained regular contact since at least 2011. The Tribunal has taken into account the parties’ respective ages, educational and family backgrounds and life experience as known to the Tribunal.

2. Further, the Tribunal questioned the parties about their knowledge of each other, their families and the pattern of their lives.

3. The Tribunal is concerned that when asked by the Tribunal about what the review applicant does during the day, the visa applicant replied “I have no idea”.

4. When questioned by the Tribunal, the visa applicant did not know the review applicant’s day or year of birth. The visa applicant told the Tribunal that the parties do not acknowledge each other’s birthdays unless they happen to be in the presence of each other at the time. The Tribunal is surprised by this answer, particularly when considered in the context of the claimed amount and frequency of contact.

5. The visa applicant was unable to tell the Tribunal whether the review applicant had any contact with his ex-wife, despite the review applicant being married to his ex-wife for almost 40 years and his divorce having only been finalised as recently as 2013.

6. The Tribunal also questioned the parties about their future plans together in Australia. The review applicant told the Tribunal that he had not discussed with the visa applicant what she plans to do in Australia. The visa applicant however said that she had discussed her plans with the review applicant and that she wants to open a florist shop. Their plans for the future overall, including supposed plans to have children, were rudimentary and illustrated little, if any, previous meaningful discussion.

7. The visa applicant’s explanation of their claimed multiple daily discussions was equally rudimentary.

8. The Tribunal is not satisfied that the applicants have demonstrated a knowledge of each other’s lives of a couple who have been together for as long as they claim and who have had regular contact. The Tribunal is not satisfied on the available evidence that the parties provide each other with companionship or emotional support, or that they see this relationship as long term. 

9. In respect to the nature of the parties’ commitment, the Tribunal has considered the period of courtship, the claimed duration of the relationship, as well as the degree of companionship and emotional support they have provided each other. The Tribunal is not satisfied that the parties share a mutual commitment to a shared life as husband and wife to the exclusion of all others. 

CONCLUSIONS

1. The Tribunal is satisfied that the marriage is valid for the purposes of the Act as required by s.5F(2)(a).

2. The Tribunal is not satisfied that at the time of application and time of decision the applicant and review applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. They therefore do not meet the requirements of s.5F(2)(b) and s.5F(2)(c) for a married relationship.

3. The Tribunal is not satisfied that at the time of application and time of decision the applicant and the review applicant live together or do not live separately and apart on a permanent basis. Accordingly, they do not meet the requirements of s.5F(2)(d) for a married relationship.

4. The Tribunal therefore finds that at the time of the visa application and the time of decision the visa applicant was not the spouse, within the meaning of s.5F, of the review applicant, who is an Australian citizen and does not meet the requirements of cl.309.211(2) and cl.309.221 of Schedule 2 to the Regulations.

5. For these reasons the Tribunal finds that at the time of application and the time of decision, the visa applicant and review applicant are not in a married relationship within the meaning of s.5F(2) of the Act. 

6. Therefore the visa applicant does not meet cl.309.211 and cl.309.221.

DECISION

1. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

P. Wood
Member

ATTACHMENT - Extract from Migration Regulations 1994

1.15ASpouse

…

1. 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.

2. 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).

3. 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.

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