1818058 (Migration)

[2022] AATA 1734

1818058 (Migration) [2022] AATA 1734 (19 February 2022)

CORRIGENDUM

DIVISION:Migration & Refugee Division

CASE NUMBER:  1818058

MEMBER:Stephen Conwell

DATE OF DECISION:  19 February 2022

DATE CORRIGENDUM

SIGNED:11 March 2022

PLACE OF DECISION:  Melbourne

AMENDMENT:  The following corrections are made to the decision:

The words ‘Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of telephone hearing. The Tribunal exercised its discretion to hold the hearing by telephone. The parties raised no objections as to conducting the hearing by telephone’ at paragraph 5 should be replaced with: ‘Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of video and telephone hearing. The Tribunal exercised its discretion to hold the hearing in this manner. The parties raised no objections as to conducting the hearing in this manner.’

The words ‘the applicant attended the I hearing by telephone’ at paragraph 6 should be removed.

Stephen Conwell
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1818058

MEMBER:Stephen Conwell

DATE:19 February 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations

Statement made on 19 February 2022 at 3:17pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 – parties are validly married – applicants are currently in a genuine spousal relationship – evidence of long-term commitment to a spousal relationship – marriage is valid for the purposes of the Act – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 48, 65
Migration Regulations 1994, r 1.15A; Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 11 May 2018 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 applied for the visa on 24 January 2018 on the basis of his relationship with [the] review applicant (sponsor). 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). 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.

3. The delegate refused to grant the visa on the basis that the visa applicant (applicant) did not satisfy cl.309.211 because there was insufficient evidence that the parties were in a spousal relationship as set out in s.5F. 

4. The sponsor provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

5. The hearing was held during the coronavirus (COVID-19) pandemic. Having regard to the nature of the review, and the objectives of the Tribunal to provide a mechanism of review that is just, fair, economical and quick, the Tribunal determined that it was appropriate that this review be conducted by way of telephone hearing. The Tribunal exercised its discretion to hold the hearing by telephone. The parties raised no objections as to conducting the hearing by telephone.

6. The sponsor participated in the hearing by video on 17 February 2022 to give evidence and present arguments. The applicant attended the l hearing by telephone. The hearing was conducted with the assistance of an interpreter in the Arabic and English languages. The Tribunal also received oral evidence from the applicant’s brother, [Mr A] who lives in Australia and from the sponsor’s daughter, [Ms B] .

7. The applicant was represented in relation to the review by his registered migration agent (representative). The representative and the interpreter both attended the Tribunal hearing by video.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is a spouse of the sponsor within the meaning of s.5F(2) at the time of application and the time of decision.

   Background to the application

10. The applicant is [age] years old at the time of decision and a citizen of Lebanon. Relying upon the decision record, the applicant’s relevant immigration history and the background to the claimed relationship is summarised below:

    ·      he first arrived in Australia in June 2011 on a Visitor visa and lodged an invalid Protection visa application on 22 July 2011. A subsequent Protection application was lodged on 4 October2011. It was refused on 1 December 2011.  That decision was affirmed by a decision of the (then) Migration Review Tribunal (MRT) on 10 May 2012 and finalised at Judicial review [in] December 2012;

    ·      another Protection application was lodged on 5 December 2013, however the application was barred under s.48b. An application for Ministerial intervention lodged on 5 December 2013 and was not considered on 8  February 2014;

    ·      a fourth Protection visa application was lodged on 16 May 2014, which was refused on 12 August 2014 and affirmed by decision of the MRT on 29 October 2014. A further attempted Protection visa application was lodged on 2 December 2014 however, this application was not considered;

    ·      the applicant lodged a Partner Combined visa application, sponsored by the current sponsor, on 26 August 2015, however, it was deemed invalid;

    ·      in late 2011, the applicant had a previous relationship with LA, lasting six months. He claims his brother pressured him to marry LA in order to gain permanent residency in Australia. The applicant was later engaged to SM in 2013 in Australia prior to meeting the current sponsor;

    ·      the sponsor is [age] years old at the time of decision. She migrated to Australia in 1998 and acquired Australian citizenship in 2002. The sponsor has a child from a  previous relationship, who is now [age] years old;

    ·      the applicant commenced online communication with the sponsor whilst he was in a Melbourne Immigration Detention Centre. They continued to communicate after the applicant was transferred to the Perth Immigration Detention Centre. They committed to marry prior to meeting and they first met in person in the Perth Immigration Detention Centre in July 2015. The sponsor was accompanied to the detention centre with the applicant’s brother. The applicant and sponsor married in the detention centre [in] August 2015, a week before the applicant’s deportation from Australia.

    Whether the parties are in a spouse or de facto relationship

11. Clauses 309.211(2) and 309.221 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 who is an Australian citizen.

12. ‘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 a married couple 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 about 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. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

13. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The sponsor submitted to the Tribunal a copy of their marriage certificate. The marriage was solemnised in accordance with the Marriage Act 1961 between the sponsor and the applicant on [date] August 2015 at [an Immigration Detention Centre] where the applicant was held in immigration detention prior to his deportation. 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 spouse relationship met?

14. The delegate noted that the requirements outlined in r.1.15A of the Regulations for a spousal relationship were considered. The Tribunal has also considered these requirements.

    Financial aspects of the relationship

15. At hearing, the sponsor informed the Tribunal that the financial aspects of the relationship are limited. The sponsor informed the Tribunal that they have no joint ownership of real estate or other major assets; no joint liabilities; no pooling of financial resources, especially in relation to major financial commitments; and neither party in the relationship owes any legal obligation in respect to the other.

16. According to the evidence and confirmed by the sponsor at the hearing, she had made several money transfers to the applicant in each year from 2015 - 2019 inclusive; in 2017, the applicant made one money transfer to the sponsor. At the hearing the applicant stated that he had found work as [an Occupation 1] two years ago and thus did not need financial assistance from the sponsor.  The sponsor confirmed this at hearing. The applicant also mentioned that he had sent AUD500 to the sponsor to assist her with funeral costs following the death of her brother in May 2021. This was confirmed by the sponsor. The Tribunal has considered the claims and documentary evidence and is satisfied that the sponsor has supported the applicant when he was unemployed.

17. There is also evidence of the joint [Bank] account in the names of the parties. The sponsor however acknowledged that she is the only user of the joint account and that she engages in the minimal transactions necessary in order to avoid incurring penalty fees. The sponsor also confirmed that the applicant remains a 50 percent beneficiary of her superannuation fund, with her daughter being the other 50 percent beneficiary.

18. In consideration of the limited evidence, the Tribunal finds that the sponsor and applicant have not pooled their financial resources. Accordingly the Tribunal places little weight on the consideration of the financial aspects of the relationship.

    Nature of the household

19. The sponsor and applicant claimed to have lived together in Lebanon during the sponsor’s visits to see the applicant.  When questioned independently, both recalled accurately the times and duration of the visits –  three weeks in September 2015; four weeks in March 2016, followed by eight weeks commencing in December 2016; two week in July 2018 and four weeks in March 2019.  The sponsor had planned to visit the applicant again in 2020, but was prevented from doing so by the COVID-19 pandemic. Both parties independently gave evidence that for the majority of these visits they were able to live as a couple in one of two houses owned by the applicant’s family, while his family lived in the other property. From the evidence, the Tribunal accepts that the parties have lived together in Lebanon for a period of approximately five months.

20. During their cohabitation in Lebanon the parties claimed that they shared the responsibility for housework, although the applicant did most of the cooking since he enjoys this activity. The evidence includes photographs of the sponsor during her visits to Lebanon, socialisng with the applicant and his family.

21. The sponsor claimed at hearing that she lives with her daughter in rental property and should the applicant be successful with his visa application, he would join their household in Australia.

22. The Tribunal has considered the evidence that the parties lived together during the sponsor’s visits to Lebanon.  Having had the benefit of taking evidence from both parties in the course of the hearing, the Tribunal finds them both to be genuine and credible witnesses.  Whilst the Tribunal does not accept that this was a sufficient period of time for the parties to establish a household it is satisfied that the parties shared all aspects in relation to the household when they lived together in Lebanon during the sponsor’s visits.  Apart from those visits, the Tribunal accepts that, the parties have lived apart in separate countries directly impacting on their capacity to share day-to-day household chores. Furthermore the  applicant was in detention, firstly in Melbourne, then in Perth, during the entire span of their relationship in Australia.  In light of these circumstances, the Tribunal is satisfied that it is not possible to continue this shared responsibility when living apart in different countries, whilst awaiting the result of the visa application.

23. In light of the sponsor’s several  visits to Lebanon and the testimony that they cohabited as a married couple for most of that time, the Tribunal places limited weight on this aspect of the relationship.

    Social aspects of the relationship

24. In assessing the social aspects of a relationship, the Tribunal must have regard to all the social circumstances of the relationship including whether the parties represent themselves as a couple to other people as being married to each other; the opinion of the parties’ friends and acquaintances about the nature of the relationship and any basis on which the parties plan and undertake joint social activities.

25. Both parties indicated that most of the sponsor’s time in Lebanon was occupied with socialising within the applicant’s family; given their protracted time apart, the parties preferred to spent much time alone as a couple. The Tribunal acknowledges there are photographs of family gatherings and of tourist settings in Lebanon involving the sponsor. There  is also a letter of support on file from the applicant’s parents, translated into English. The letter speaks of the sponsor being accepted wholeheartedly into the applicant’s family. The Tribunal has no reason to query the genuineness of this evidence.

26. The sponsor informed the Tribunal that she tells other people that the applicant is her husband and all her immediate family, both in Australia and in New Zealand know and accept him as her husband.  Most importantly the sponsor’s only child, [Ms B] – now a young adult – testified by telephone as a witness at the hearing; she offered credible evidence of the genuineness of the relationship, having witnessed its trajectory since she was around [age] years of age.  The witness spoke with conviction that the relationship was genuine and that the applicant was ‘good for’ her mother, the sponsor. The witness also mentioned that the applicant always showed an interest and care for herself, something which she appreciates more so now, from the perspective of adulthood.

27. The sponsor informed the Tribunal that she has also become close to the applicant’s brother, [Mr A] and his family.  When the applicant’s mother travelled in 2015 to Australia to visit [Mr A], whose wife was expecting at that time, the sponsor visited [Mr A] and his family several times during her mother-in-law’s stay in Australia.

28. The applicant’s brother, [Mr A], testified by telephone as a second witness at the hearing and also spoke with credibility of the genuineness of the relationship. He mentioned that on his own visit to Lebanon to see his family, he was impressed by the regularity of telephone and social media contact between the sponsor and applicant. This seemed to be a spontaneous and unrehearsed recounting of [Mr A]’s personal witnessing of the quotidian rhythms of the parties’ interaction.  There are no additional written declarations (forms 888) to the three that were before the delegate – one from [Mr A] and two from friends of the applicant.  Nevertheless, despite the fact that both witnesses at hearing are direct family members of the parties, the Tribunal found them both to be credible and honest witnesses and therefore the Tribunal places positive weight on their testimony in favour of the application.

29. Both parties also mentioned at hearing that the applicant’s sister and her family have recently moved to Australia on the basis of her husband having been granted a visa.  The applicant knew little more regarding the basis of this relocation and the Tribunal is satisfied that it plays no part in applicant’s reasons for proceeding with his own visa application.

30. Both the sponsor and the applicant gave independent evidence to the Tribunal that they have been in daily contact with each other via telephone and text messages and video calls.  Their settled routine seems to involve text messages to each other upon arising each day and regardless of the interaction they may have during the day, they also send text messages to each other to say good night. None of this evidence seemed to the Tribunal to be rehearsed or contrived, rather the testimony appeared to be the honest recounting of the parties’ daily interaction with each other in order to maintain some semblance of intimate contact despite the gulf of time apart and distance.

31. The Tribunal has given careful regard to the social aspects of the relationship and the effect of the parties living apart for all but some five months of their married life of almost seven years. Despite the challenges of time and distance the Tribunal accepts the testimony (supported by evidence of phone logs, ‘screen shots’ and text messages) that the parties have strived to live as a married couple, sharing their daily experiences with each other through daily text and phone messaging. Accordingly the Tribunal gives some positive weight to the social aspects of the relationship.

    Nature of persons’ commitment to each other

32. In assessing commitment to each other, the Tribunal must have regard to the duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the parties draw from each other and whether the persons see the relationship as a long term one.

33. At hearing the Tribunal asked both parties independently whether the 20 year age gap between them was an issue; each party replied convincingly that it was not an issue to either of them.  The Tribunal also raised the question of the applicant’s immigration history independently with each party.  Both parties again replied convincingly that the applicant’s previous immigration history did not detract from the genuineness of their relationship that had withstood the challenge of both distance and of the parties being apart for almost seven years.

34. The Tribunal notes that both parties consistently and spontaneously referred to each other as their respective spouse; both spoke confidently of being committed to their marriage despite their long separation. 

1. One point of minor discrepancy arose when the Tribunal questioned the parties separately on whether they had considered the prospect of the application being unsuccessful. The applicant stated that they had not contemplated this outcome, choosing to remain positive. The sponsor however stated that there had been some discussion in such an eventuality – in particular whether she would relocate to Lebanon to be with the applicant. However  she noted that this would not be the preferred option, since she has a satisfying job in Australia and most importantly, her only child is here, albeit she is now a young adult of [age] years of age.  The Tribunal makes no adverse finding on this minor discrepancy of the parties’ recollection.

2. Both the Departmental and Tribunal files hold evidence of communication between the parties in the form of phone logs, ‘screen shots’ and text messages. The parties stated to the Tribunal that they provide each other with a degree of companionship and emotional support through daily communication and that the applicant also maintains direct contact with the sponsor’s daughter – which is corroborated by her as a witness. The parties informed the Tribunal that they see this relationship as a long-term one and they continue to plan for a life together, including the possibility of having a child together, despite the age gap between them. This evidence appears to indicate genuine communication between a married couple separated by time and distance. Having made a favourable assessment of the parties’ credibility in the course of the hearing, the Tribunal is prepared to give these messages positive weight in supporting the nature of the persons’ commitment to each other.

3. It was apparent throughout the hearing that the parties discuss and determine their plans mutually and support each other practically and emotionally, as well as financially where it is necessary and possible to do so. The Tribunal found their claims in this regard to be persuasive.

4. The Tribunal acknowledges the applicant’s adverse immigration history, which it views with some concern. However having regard to the circumstances of the parties relationship, the way in which the relationship appears to have coped with the challenges of both time and distance over the almost seven years of their marriage, and having made a favourable assessment of the parties’ credibility, the Tribunal is satisfied that the parties demonstrate a shared commitment to having a future together as a married couple, to the exclusion of all others, and that the relationship is genuine and continuing. Accordingly the Tribunal accords significant weight to the nature of the person’s commitment to each other.

5. In reaching its conclusions, the Tribunal observes that there is a two-stage process before a permanent visa is granted in the Partner migration stream and therefore there will be a further assessment of the relationship at the permanent visa stage and the matter of the genuineness of the relationship and commitment of the parties will be considered once more on the circumstances that exist at that time.

6. For present purposes, having regard to the totality of the evidence before it, the Tribunal is satisfied that at the time of application and time of decision the applicant and sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others and the relationship is genuine and continuing. The Tribunal accepts their evidence that they plan to live together in Australia if the applicant is granted a visa to come to Australia.

7. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision. Therefore the applicant meets cl.309.211(2) and cl. 309.221.

8. 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 309 visa.

   DECISION

9. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

   ·cl.309.211(2) of Schedule 2 to the Regulations

   ·cl.309.221 of Schedule 2 to the Regulations

   Stephen Conwell
   Member

   
   

   ATTACHMENT  - Extract from Migration Regulations 1994

   1.15ASpouse

   (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).