Abd Elhady (Migration)

[2024] AATA 2782

Abd Elhady (Migration) [2024] AATA 2782 (19 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Aref Awad Abd Elhady

REPRESENTATIVE:  Mr Richard Amhaz (MARN: 1796249)

CASE NUMBER:  2000958

HOME AFFAIRS REFERENCE(S):          BCC2017/4092594

MEMBER:M. Edgoose

DATE:19 July 2024

PLACE OF DECISION:  Melbourne

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

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 19 July 2024 at 8:27am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – shared expenses – shared responsibility for housework – joint travels and social activities – emotional support – decision under review remitted 

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206

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 Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 3 November 2017 on the basis of his relationship with his sponsor. At that time, 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 (Cth) (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 820.211(2)(a).

4. The applicant appeared before the Tribunal on 13 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Zoubayda El-Cheikh the sponsor and wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

5. The applicant was represented in relation to the review however the representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

7. Clauses 820.211(2)(a) 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 citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

8. ‘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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties submitted to the Department a copy of their marriage certificate. According to the marriage certificate the marriage took place on 11 August 2017 at Condell Park, Condell Park, NSW and the marriage celebrant was Jalal Chami. 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?

   Financial aspects of the relationship

10. Overall, the Tribunal was satisfied with the oral evidence given by the couple at the hearing regarding the financial aspects of the relationship. The oral evidence supported the written evidence that had been provide prior to the hearing. The sponsor in this matter is the clear income earner given that she owns and runs her own retail outlet.

11. The couple have no joint ownership of assets; no joint liabilities; no pooling of financial resources; no legal obligations owed to the other party; and limited sharing of day-to-day household expenses. The applicant pays for the groceries and entertainment and the sponsor pays for the utility bills and gas given that she owns the property in which they live.

12. Therefore, based on the evidence before it the Tribunal is satisfied that the couple meet the financial aspects of the relationship.

    Nature of the household

13. There is no joint responsibility for care and support of children. The applicant has three sons and two daughters from previous relationships and the sponsor has a son and two daughters from her previous relationship. The couple live together at the sponsors home, and they share the responsibilities for the housework.

14. Therefore, based on the evidence before it the Tribunal is satisfied that the couple meet the requirements of the nature of the household.

    Social aspects of the relationship

15. The couple demonstrated to the Tribunal both in their oral evidence and written evidence that they represent themselves to other people as being married to each other. At the request of the Tribunal couple submitted several statutory declarations and statements from family and friends in support of their relationship post hearing. The couple have been in a married relationship for over seven years. They also provided photographic evidence of their joint travels together both locals and overseas. This demonstrated to the Tribunal that as a couple they had planned and undertaken a range of social activities.

16. Therefore, based on the evidence before it the Tribunal is satisfied that the couple meet the requirements of the social aspects of the relationship.

    Nature of persons' commitment to each other

17. The couple in this matter have been married for over seven years and have been living together since August 2017. Therefore, they have been living together since they married on 11 August 2017. The couple through their companionship and emotional support for each other have remain positive throughout this lengthy process.  The couple see this relationship as a long-term on and based on the oral and written evidence of support the Tribunal is satisfied with the nature of the persons’ commitment to each other.

    Therefore, based on the evidence before it the Tribunal is satisfied that the couple meet the requirements of the nature of the persons’ commitment to each other.

    Any other circumstances of the relationship

18. 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.

19. Therefore, the applicant meets cl 820.211(2)(a) and cl 820.221.  

20. 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

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

    ·cl 820.221 of Schedule 2 to the Regulations

    M. Edgoose
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).