ABBOUD (Migration) - [2019] AATA 6094

ABBOUD (Migration) [2019] AATA 6094 (17 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Linda ABBOUD
CASE NUMBER:  1809766
HOME AFFAIRS REFERENCE(S):          BCC2014/2530929
MEMBER:Kira Raif
DATE:17 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211 of Schedule 2 to the Regulations
·cl.820.221 of Schedule 2 to the Regulations

Statement made on 17 September 2019 at 2:48pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Federal Court remittal – compelling reason for not applying Schedule 3 criteria – two children – not holder of substantive visa at time of application – genuine and committed spousal relationship – sponsor provides financial support – joint household – shared responsibilities of children – emotional comfort and support – credibility issues – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65, 359A
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cls 820.211, 820.221, Schedule 3, Public Interest Criterion 3001

CASES
Abboud v Minister for Immigration & Anor [2017] FCCA 2047
Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
Waensila v MIBP [2016] FCAFC

STATEMENT OF DECISION AND REASONS
Application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).
The applicant is a national of Lebanon, born in August 1988. She first travelled to Australia in 2009 holding a Student visa and made other visa applications in Australia. The applicant applied for the Partner visa on 2 October 2014 on the basis of her relationship with her 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 that the applicant met Public Interest Criterion (PIC) 3001 and also because the delegate was not satisfied the applicant was the spouse of the sponsor.
The applicant sought review of the delegate’s decision. In February 2017 the Tribunal (differently constituted) affirmed the decision under review. The applicant sought judicial review of the Tribunal’s decision and the Federal Court remitted the matter to the Tribunal for reconsideration.
The applicant appeared before the Tribunal on 17 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Relevant law
At the time the application was made, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
Clauses 820.211(2) 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
‘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 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. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).
It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, the issue in the present case is whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria.
In order to satisfy criterion 3001, the application for the visa must have been lodged within 28 days of the relevant day. The ‘relevant day’ is defined in 3001(2).
Does the applicant meet Schedule 3 criteria?
The applicant provided to the Tribunal a copy of the primary decision record. It indicates the applicant travelled to Australia holding a Student visa in December 2009. That visa ceased on 6 June 2012. The applicant made an application for another visa in October 2011 and that application was refused by the delegate and the decision subsequently affirmed by the Tribunal. The applicant’s request for Ministerial intervention was unsuccessful and the applicant was informed of that in December 2012. The applicant sought judicial review in February 2013 and withdrew from the proceedings in December 2013. The applicant was in Australia as an unlawful non-citizen between 19 December 2013 and 9 October 2014.
The Tribunal finds that the applicant last held a substantive visa when her Student visa ceased on 6 June 2012. She was not the holder of a substantive visa at the time she made the application for the Partner visa in October 2014. There is nothing to suggest that the applicant entered Australia as a holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder. The Tribunal is not satisfied the applicant meets cl. 820.211(d)(i).
The applicant is required to satisfy the Schedule 3 criterion 3001 for the purpose of cl. 820.211(d)(ii).
There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994. There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994. There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that she entered Australia unlawfully on or after 1 September 1994. There is nothing to suggest that the last substantive visa held by the applicant was cancelled and the Tribunal has made a decision to set aside and substitute the cancellation decision.
The Tribunal has found that the applicant ceased to hold a substantive visa when her Student visa expired in June 2012. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3. As the application for the Partner visa was made in October 2014, the Tribunal is not satisfied that the application was validly made within 28 days after the relevant day. The Tribunal is not satisfied that the applicant meets Item 3001.
Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.
Compelling reasons
As the Tribunal has found that the applicant does not meet the relevant Schedule 3 criteria, it is required to consider whether there are compelling reasons for not applying the criteria.
The expression ‘compelling reasons’ is not defined for these purposes. However, the reasons should be sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria and the circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.
The applicant and the sponsor provided a number of reasons why the waiver should be applied. The parties refer to the birth of their child in November 2016 and provided evidence of the child’s birth, including the birth certificate which identifies the applicant and the sponsor as the parents. In her submission to the previous Tribunal, the applicant refers to her child being born premature and the need for ongoing observation. She states that the sponsor is unable to care for the child due to his own mental condition and she states she cannot take the child overseas due to her medical condition and susceptibility to exposure to decease.
The applicant provided to the present Tribunal evidence of the second child born in March 2018. There is nothing before the Tribunal to indicate that the information contained in the various documents concerning the children’s parentage is incorrect. The birth certificates identify the applicant as the mother and the sponsor as the father of the two children. The Tribunal accepts, for the purpose of this review, that the applicant and the sponsor have two children and that they both take care of the children. The Tribunal is of the view that the existence of the children – who are Australian citizens – constitutes a compelling reason for not applying the Schedule 3 criteria. It is not necessary for the Tribunal to consider other claims for the waiver put forward by the applicant.
The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl. 820.211(2)(d)(ii).
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided with her application evidence that she and the sponsor registered their marriage in August 2014. There is nothing to indicate the marriage is not valid. The Tribunal is satisfied the applicant and the sponsor 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?
The circumstances of this relationship and of the parties’ previous applications and claims are set out in Abboud v Minister for Immigration & Anor [2017] FCCA 2047. The Tribunal shares the concerns of the previous Tribunal that the sponsor obtained his own visa on the basis of being a homosexual and, shortly after that visa was granted, he claims to have ‘reformed’ and to have become a heterosexual and formed the relationship with the applicant. The timing of the sponsor’s claims concerning his sexuality – and in particular, the fact that as soon as he was granted a visa on the basis of his homosexuality, he made the decision that he was no longer a homosexual and became a heterosexual – suggests to the Tribunal that these claims may have been made solely to enable the sponsor to obtain a visa and remain in Australia. The Tribunal is not satisfied that the sponsor had been truthful in these claims.
The Tribunal is also mindful of the findings made in relation to the applicant’s credibility by the previous Tribunal when assessing her earlier application for a substantive visa. These were set out in the first Tribunal’s s. 359A letter. The Tribunal found that the applicant had fabricated, or exaggerated, her claims and that she was not a credible witness.
The Tribunal has formed the view that neither the applicant nor the sponsor are persons of credibility and that they are willing to provide untruthful evidence to enable them to obtain visas. However, none of these matters affect their ability to form a genuine and committed spousal relationship of the nature contemplated in r. 1.15A.
The Tribunal has considered the financial aspects of the relationship. The applicant’s evidence is that she has not worked for a number of years and has no income. She is not entitled to any government payments, given her immigration status. The applicant states that the sponsor is responsible for financial support for the family. She has a card and can access the sponsor’s account and he pays for all the family expenses and also gives her cash if she has no time to go to the bank. The applicant could not recall if they had made any joint purchases when she did have an income.
There is no evidence of joint ownership of assets or of joint liabilities and there is no evidence of any pooling of financial resources. There is no evidence of any legal obligations owed to each other or of any sharing of day-to-day household expenses. However, the Tribunal accepts that the sponsor provides financial support for the family and meets all of the family’s expenses. The Tribunal also accepts that the reason she cannot contribute to the family’s budget is because she does not work and is not entitled to any benefits.
The Tribunal has considered the social aspects of the relationship. The applicant’s evidence is that with two little children and due to the sponsor’s work commitments, their lives revolve around children and there is little time to socialise. They have contact with the sponsor’s sister and her family who live in Australia and more limited contact with the sponsor’s uncle. There is some contact with the couple’s parents overseas. The applicant also referred to some friends who visit the family and said they socialise sometimes when they have time. A number of statements from third parties had been provided with the primary application. The Tribunal finds that the evidence relating to the social aspects of the relationship is limited but the Tribunal accepts that there is some social recognition of the relationship and that the parties represented themselves to others as being in a relationship and had planned and undertaken joint social activities. The Tribunal accepts that their social activities at present are limited because of their young children.
There is evidence that the parties have established a joint household. There are statements from real estate agency and evidence of joint lease, as well as evidence of rental payments. The Tribunal accepts that the applicant and the sponsor live together. Both parties told the Tribunal that household chores are the applicant’s responsibility and there is little evidence that they share the housework. The couple have two children. They gave consistent evidence about their responsibilities towards the children and the Tribunal accepts that they share such responsibilities.
The couple have been married in August 2014 and to date, their relationship has been in existence for over five years, which is a lengthy period of time. The Tribunal accepts that they rely on each other for emotional comfort and support The Tribunal places significant weight on the fact that the couple have two children together and in the Tribunal’s view, that offers a strong indication that they are in a genuine and committed relationship which they view as a long term one.
Overall, the Tribunal finds that there is limited evidence concerning some aspects of the relationship. In particular, there is limited current evidence concerning the social recognition of the relationship and the financial aspects of the relationship. The Tribunal acknowledges that the couple’s activities are limited due to their young children. The Tribunal considers the presence of two children in this relationship to be strong evidence of its genuine nature and this consideration outweighs other concerns.
The Tribunal is satisfied, on balance, that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision. The applicant meets cl. 820.211 and cl. 820.221.
The Tribunal also discussed with the applicant the issue of any debt to the Commonwealth, for the purpose of Item 4004. The applicant was not sure if she had paid the fees and said that she did not know about the debt. There is no evidence before the Tribunal that the applicant paid the fees in relation to her first visa application and any subsequent litigation. It is not apparent that the applicant meets PIC 4004. The Tribunal makes no finding in relation to the issue to enable the applicant to make appropriate arrangements to repay.
Conclusion
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 820 visa.
DECISION
The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:
·cl.820.211 of Schedule 2 to the Regulations
·cl.820.221 of Schedule 2 to the Regulations
Kira Raif
Senior Member