2000297 (Migration)

[2022] AATA 4540

2000297 (Migration) [2022] AATA 4540 (14 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Owen Harris (MARN: 0851294)

CASE NUMBER:  2000297

MEMBER:Ann Duffield

DATE:14 November 2022

PLACE OF DECISION:  Canberra

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(2)(a) of Schedule 2 to the Regulations

·cl.309.221(1)(a) of Schedule 2 to the Regulations

Statement made on 14 November 2022 at 10:25am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing spousal relationship – elopement – money transfers – plans to start a family – supporting statements from family and friends – gradual family acceptance – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 5F, 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 4 December 2019 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 2 October 2018 on the basis of her relationship with her sponsor, the review applicant. 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 did not satisfy cl.309.211(2)(a) because they were not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act.

4. The review applicant (sponsor) appeared before the Tribunal on 10 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone in Lebanon.

5. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Migration Act.

   BACKGROUND

8. The visa applicant is a citizen of Lebanon born on [date] ([age] years old). She has declared no previous marriages and has no children. Her parents and [some] of her siblings live in Lebanon while [three siblings] live in Australia. [Two] of her [siblings] applied for protection visas upon their arrival in Australia. One has not been decided and one has been refused. However, the latter [sibling] remained in Australia on a partner visa. The applicant’s [other sibling] was also granted a partner visa.

9. The sponsor is an Australian citizen born on [date]. He has declared a previous de facto relationship from February 2014 to May 2017 and there are [number] children of the relationship born in [specified years]. He currently resides in Canberra with his brother. He has declared a criminal history of offences relating to [specified offences]. These matters were discussed during the hearing but not considered relevant to the Tribunal’s findings apropos the couple’s relationship.  

10. The sponsor’s movement records show that he departed and returned to Australia on the following occasions from the time that the parties claimed to have first met:

    a.Departed [in] April 2018 returned [later in] April 2018 ([number] days)

    b.Departed [in] July 2018 returned [in] October 2018 (3 months)

    c.Departed [in] April 2019 returned [in] April 2019 ([number] days)

    d.Departed [in] November 2019 returned [in] December 2019 (3 weeks)

11. The parties claimed to have first met in a café in Halba, North Lebanon, [in] April 2018. They were married [in] July 2018 and had a wedding lunch [in] August 2018 at the home of the sponsor’s family where they remained living together for three months prior to the sponsor departing for Australia. The sponsor has travelled to Lebanon to see the applicant on one other occasion in November 2019 and they both travelled to [a third country] together in April 2019 for [number] days.

12. It is claimed by the parties that the applicant’s family were opposed to the marriage because they did not want their daughter to move abroad. However, they changed their minds about the marriage and have offered letters of support as evidence.

13. The applicant applied for a visitor visa on 21 November 2019 to visit the applicant in Australia however it was refused.

14. In a statement provided by the applicant’s father dated 26 May 2020, he states that at the beginning he refused the marriage of his daughter to the sponsor because he did not want her to travel abroad to live. Nevertheless the couple married secretly and the applicant’s father delegated his brother to conclude the marriage contract between his daughter and the sponsor. The families reconciled shortly afterwards and attended the wedding lunch. The sponsor states that all members of their extended families support their marriage.

    Whether the parties are in a spouse or de facto relationship

15. Clause 309.211(2) and 309.221(1)(a) require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen by birth.

16. ‘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 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. 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?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A copy of the parties’ marriage certificate appears at Folio 47 of the department’s 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 spouse relationship met?

18. The tribunal found the parties to be forthright and credible witnesses at the hearing. The Tribunal accepts their evidence and finds that they are in a spousal relationship within the meaning of the Migration Act for the following reasons.

19. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

20. According to copies of some money transfers provided to the Tribunal, between 19 November 2018 and 26 October 2022, the applicant received a total of AUD$37,908. However, whilst the name of the applicant appears on the money transfers, there is no record of the name of the person sending the money.  At the hearing the sponsor showed the Tribunal the receipt record of these transactions and the Tribunal is satisfied that the sponsor sent the funds to the applicant as claimed.

21. Both parties told the Tribunal that the money sent by the sponsor was used by the applicant for her day-to-day life and also other expenses such as dental work and medical bills, travel and jewellery. The applicant has not saved any of the money sent to her

22. The sponsor has provided evidence of his [service] business registered in Victoria dated [in] October 2017 and a letter from his accountant dated 28 May 2020 confirming that the sponsor trades as [business name]. A record of business registration in that name dated 16 February 2021 has been provided to the Tribunal. The applicant currently lives in Canberra with his brother and told the Tribunal that the last couple of years he earned around $50,000 a year. An [injury] prevented him from working for part of that period.

23. The sponsor has provided two tax returns; one for 2017-2018 shows a taxable income of $43,800 and for his tax assessment in 2018-2019 he shows a taxable income of $10,233.

24. The parties told the Tribunal that they intend to rent a home together in Canberra and will continue to expand the sponsor’s business. The applicant will wait until she arrives to decide whether she will find work or remain at home to raise a family.

25. The Tribunal accepts that whilst living in different countries it is difficult to acquire joint assets, however the Tribunal is satisfied that the financial aspects of the parties’ relationship supports a finding that they have a genuine and ongoing commitment to a shared life together to the exclusion of all others.

26. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

27. Since their marriage in July 2018 the couple have lived together for approximately seventeen weeks. After their marriage they lived together as man and wife at the home of the sponsor’s father. They travelled frequently to visit the family of the applicant also and did some sightseeing together. [Details deleted.] They travelled together to see a doctor in November 2019 about [a health issue] and it transpires that the applicant has [specified medical condition]. The Tribunal asked the sponsor whether it would be problematic for him if [this health condition continued] and he said it would make no difference.

28. The applicant has [number of children] to a previous relationship, and he has a continuing presence in their lives, including seeing them regularly at weekends and at other times. Whilst there is no formal agreement as to a CSA, the sponsor claims to provide the children and their mother with approximately $1000 a month. The applicant was knowledgeable about the sponsor’s [children] and whilst she has not spoken to them, she and the sponsor expressed a strong commitment to sharing in the parenting of those children.

29. The couple talked about having a family of their own and remain confident that despite the applicant’s diagnosis that they will be successful.

30. The Tribunal is satisfied that, despite living in different countries, the nature of the couple’s household supports a finding that they have a mutual commitment to a shared life together and that they do not live separately and apart on a permanent basis.

31. The Tribunal has considered the social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

32. The couple have provided many photographs of themselves together and with others at various social and family functions including their own and other family members weddings. Despite the unconventional start to the couple’s relationship, there are a number of strong statements from family members and friends supporting the couple’s marriage.

33. The Tribunal is satisfied that the evidence of the social aspects of the couple’s relationship supports a finding that they are known to others as a couple and that they have a long-term commitment to sharing their lives together as spouses.

34. The Tribunal has considered the nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

35. There was a long discussion with the couple about the unconventional development of their relationship, particularly their elopement, given that both parties are faithful Muslims and married without the permission or knowledge of their respective families. The explanations given by both parties, and the account of their marriage and the subsequent acceptance of the marriage by their families was compelling and, in the Tribunal’s mind, demonstrates their strong commitment to one another and a shared life together. There are some variations between the written and oral accounts of their relationship and after discussion, questioning and clarification, the Tribunal accepts the following account.

36. The parties first met [in] April 2018 whilst the sponsor was visiting family in Lebanon. The sponsor went back to Australia [in] April 2018 and the two of them continued talking to one another. There was an initial agreement between the families of the couple for them to marry, however the applicant’s parents changed their mind when they decided that they would find it difficult to let yet another one of their children live abroad.

37. The parties however were resolved to marry “no matter what happens” and so the sponsor travelled to Lebanon [in] July 2018 with his brother, his brother’s wife and his nephew. As soon as they arrived in Beirut they drove to Tripoli where they dropped off his brother’s wife and his nephew at a hotel. The sponsor and his brother then travelled to the applicant’s home to pick her up. During the journey there the applicant provided directions as the sponsor had never been to her house before. The sponsor showed the Tribunal this exchange at the hearing. The sponsor and his brother arrived at the applicant’s home after midnight and the applicant was waiting, with her luggage, under the fig tree as arranged.

38. The three of them then travelled back to Tripoli where they stayed at the hotel together. The following day the applicant and the sponsor went to the village of the sponsor and were married before a Sheik. They returned to their hotel in Tripoli and stayed another two nights before travelling to the sponsor’s parents’ house in [Town 1]. During this time both the applicant and the sponsor informed their families of what happened and, accepting the inevitable, the applicant’s father sent his brother to [Town 1] to witness the marriage at the court on [a day in] August 2018.

39. The Tribunal put to both parties that their marriage did not appear to reconcile with their faithfulness. The Tribunal put to the applicant that it must have been a difficult decision for her to make without the blessing of her family. She said that she wasn’t thinking clearly at the time and all she knew was that she loved him and wanted to marry him.

40. The couple then travelled to the home of the applicant’s family and in all, around 90 members of both families celebrated their marriage at the home of the sponsor’s father [in] August 2018. They remained living in that house for 3 months before the sponsor returned to Australia.

41. The Tribunal is satisfied that the nature of the parties’ commitment to one another supports a finding that they are in a genuine, committed and long-term spousal relationship to the exclusion of all others and that they do not live separately and apart on a permanent basis.

42. 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 at the time of this decision.

43. Therefore, the visa applicant meets cl.309.211(2)(a) and cl.309.221(1)(a).

    CONCLUSION

44. 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

45. 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)(a) of Schedule 2 to the Regulations

    ·cl.309.221(1)(a) of Schedule 2 to the Regulations

    Ann Duffield
    Senior 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).