Abdulwahed (Migration)

[2020] AATA 6096

Abdulwahed (Migration) [2020] AATA 6096 (11 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Hala Abdulwahed

VISA APPLICANT:  Mr Marwan Alhussain

CASE NUMBER:  1800711

DIBP REFERENCE(S):  BCC2016/1781646

MEMBER:Russell Matheson

DATE:11 December 2020

PLACE OF DECISION:  Sydney

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, cl.309.212 and cl.309.213 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 11 December 2020 at 7:45am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309– copy of Marriage Certificate provided – parties are validly married – applicants are currently in a genuine spousal relationship– evidence of long-term commitment to a spousal relationship – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r1.15, Schedule 2, cls 309.211, 309, 212, 309.221, 309.213

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 Immigration on 11 December 2017 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 (the applicant) is a 45-year-old male national of Syria born in October 1975. He applied for the visa on 19 May 2016 on the basis of his relationship with his 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 because the delegate was not satisfied that the applicant is the spouse of the sponsor.  

4. The review applicant (the sponsor) appeared before the Tribunal on 29 October 2020 to give evidence and present arguments. The Tribunal also received oral evidence from two witnesses Houda Radwan (sponsors daughter) and Rana Elnajjar (sponsors niece).

5. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   Background

7. The applicant is a 45-year-old male from Mayadeen, Syria and is currently employed as a chef. He claims that he has not been previously married prior to his marriage to the sponsor. His parents and siblings all reside in Syria.

8. The sponsor is a 56-year-old female who was born in Tripoli, Lebanon. She has declared that she was previously married from December 1977 until April 2015. There are three children from the relationship.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

10. The Tribunal has before it the Departmental file relating to the applicant; its own file; and a copy of the Department’s decision provided by the sponsor to the Tribunal.

11. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

    Whether the parties are in a spouse or de facto relationship

12. Clause 309.211(2) and cl.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 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.

13. ‘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) of the Regulations are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of the marriage certificate registered in Lebanon indicating the parties were married in Tripoli, Lebanon, on 26 May 2015. There is no evidence before the Tribunal to indicate the marriage is not valid. 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).

15. After careful consideration of all of the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below, the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3), and the reasons for its decision.

16. The Tribunal had the benefit of the sponsor’s oral evidence. The Tribunal gave all the evidence provided by the sponsor and the witnesses (the sponsor’s daughter and niece) at the Tribunal hearing and the information contained in the Departmental and Tribunal files due regard. The Tribunal considered evidence given by the sponsor and the witnesses to be persuasive and overall credible.

    Are the other requirements for a spouse relationship met?

    Financial aspects

17. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses and any combined future financial commitments or plans.

18. The sponsor provided money transfer receipts to the Department and Tribunal for the period 16 July 2015 to 10 October 2019 totalling AUD14,257.36. She also provided receipts in joint names for items of jewellery purchased in Lebanon including wedding rings. The parties provided a copy of a lease agreement in joint names for a 12-month period in October 2015 for a one-bedroom unit paying USD5,400 a year rent. The sponsor gave evidence that the parties purchased second-hand furniture for the unit. The sponsor also stated that she purchased a house in Lebanon in May 2015 and sold it a few months later. She said the house was in her name only because the applicant was not allowed to have his name on the title because he was a Syrian national. She further stated that she has travelled to Lebanon on numerous occasions to visit the applicant and the parties shared their financial resources for daily expenses such as grocery shopping, dining out and travel. The sponsor provided documentary evidence of giving full power of attorney to her partner (the applicant) to act on her behalf in all financial and legal matters. 

19. The applicant and sponsor provided limited evidence regarding the financial aspects of their relationship, including evidence of any pooling of financial resources, sharing of day-to-day expenses or shared financial commitments for their life together as spouses.

20. The parties have no joint liabilities or major assets together. There is limited evidence before the Tribunal to indicate that the parties share or pool their financial resources. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. There is little evidence before the Tribunal to support that the parties share day-to-day living expenses or pool their financial resources.

21. The Tribunal accepts there is a degree of difficulty in establishing and sharing financial resources when the sponsor and applicant live in separate countries. The Tribunal finds based on the evidence before it, that the sponsor has provided significant financial support to the applicant. The Tribunal places some positive weight on this aspect of the relationship.

    Nature of the household

22. The Tribunal has considered the nature of the household including any joint responsibility for the care and support of children, if any, living arrangements of the parties and the sharing of the responsibility for housework.

23. The Tribunal queried the sponsor as to her current living arrangements. The sponsor provided evidence (written and oral) that she and her ex-husband had children together and they also purchased a house to live in when they were married. When they got divorced, they divided the house into two sections with separate entries, kitchens, bathrooms, bedrooms, living and entertainment areas. She further sates that the house is now two separate dwellings (duplex) and are owned by her ex-husband. She is currently living with her son and grandchildren temporarily in one of the dwellings. The sponsor informed the Tribunal she had been living in a Department of Housing (DOH) bedsitter in Greenacre on her own but was fearful of her surroundings and had health issues so she decided to move in with her son because she can’t live on her own. The sponsor states that she has applied for another DOH apartment and included the applicant in her application and said that the parties will live together when he arrives in Australia. The sponsor gave evidence that she has an amicable relationship with her ex-husband because of their children and denied any other type of relationship with her ex-husband.

24. The sponsor gave evidence that she has travelled to Lebanon on numerous occasions with the most recent being from 15 January 2020 to 26 January 2020. The sponsor stated that the parties had cohabited at numerous addresses in Lebanon and that they shared the household responsibilities such as cooking, cleaning and washing. The sponsor provided contemporaneous notes listing the addresses she has stayed at with the applicant in Lebanon. The parties provided photographic evidence of residing together in Lebanon. The Tribunal found the sponsor to be genuine and her evidence persuasive.

25. The Tribunal accepts the sponsor resides with the applicant when visiting him in Lebanon. The sponsor stated that they share the responsibilities of the household equally. The sponsor provided broadly consistent and detailed oral evidence of their activities and living arrangements when together in Lebanon of the sharing of household duties and responsibilities. Her evidence was also supported by statements made by family and friends in Lebanon.

26. Based on the evidence presented by the parties, the Tribunal accepts that they live together and have established a joint household together and that they share the responsibility for the housework when the sponsor visits the applicant in Lebanon.  The Tribunal places some positive weight on this aspect of the relationship.

    Social aspects

27. The Tribunal considered the social aspects of the relationship, including whether the 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 parties plan and undertake social activities.

28. The parties have provided a selection of photos taken of themselves with each other on limited occasions in Lebanon. The photos indicate that the applicant and the sponsor have undertaken some joint social activities, have been in the company of each other and have travelled together in Lebanon. The Tribunal has given limited weight to the submitted photographs as evidence of the social aspects of the claimed relationship.

29. The parties provided an umber of statements and Form 888 statements from family and friends who believe the relationship to be genuine but give little insight into the inception and development of the relationship over time. The sponsor’s daughter and niece provided detailed and consistent evidence and strong support regarding the parties’ relationship and the Tribunal found both witnesses convincing. The sponsor stated in her written submission that she has not met the applicant’s family as they live in Syria and it is not safe to travel there. She further states that it is well known among her family and friends that she is married to the applicant but being a mother of Lebanese background, it is culturally not acceptable if you remarry.

30. Overall, the Tribunal accepts the applicant and the sponsor plan and undertake social activities and travel together. The Tribunal is satisfied that the parties represent themselves to family, friends and other people as being in a marital relationship. The Tribunal is satisfied that family, friends and relatives view the relationship as a genuine and committed one.

    Commitment

31. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length and time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

32. The applicant and sponsor claim to have met by coincidence at Beirut airport, they met in person three or four times before the sponsor departed Lebanon and were engaged within six months. The applicant and sponsor registered their marriage in Lebanon in May 2015 and lived together when the sponsor visited the applicant in Lebanon. They have provided a copy of their marriage certificate registered in Tripoli, Lebanon, on 26 May 2015. The Tribunal accepts the parties are lawfully married and have been in a relationship for approximately five years.

33. The sponsor gave evidence she was married for 38 years prior to her marriage to the applicant. She further stated that she has never felt a connection with anyone as much as she does with the applicant. The sponsor regularly travels to Lebanon to see the applicant and maintains daily contact during separation. She also states that she supports the applicant financially and would not do so if the relationship wasn’t genuine. She gave evidence that she does not want to continue with the frequent travel to Lebanon and splitting her life between her children and current husband as this is causing her stress. The sponsor gave evidence that she has sourced employment opportunities for the applicant in hospitality and the building and construction industry through family members.

34. As previously mentioned, the two witnesses (the sponsor’s daughter and niece) provided detailed evidence and had a sound knowledge of the parties establishing a household together and the genuineness of the relationship. The Tribunal found the witnesses to be genuine and their oral evidence persuasive, and they provided strong insight into the inception and development of the parties’ relationship.  The parties also provided individual statements attesting to the genuineness of their relationship and their belief of it being a long-term.

35. The parties presented documentary evidence of continued daily contact during periods of separation and a sound knowledge of each other’s lives, family, living arrangements, health issues, personal history and future together. The evidence of communication between the parties is significant and the Tribunal considers the parties’ knowledge of one another and their everyday concerns is a function of this communication.

36. The Tribunal is satisfied that the parties see their relationship as stable, mutually supportive and a long-term one. The Tribunal considers their evidence with regard to their commitment to each other plausible, persuasive and genuine.

37. The Tribunal is satisfied the applicant and the sponsor provide each other with a degree of companionship and emotional support that is commensurate with a couple being in a genuine and continuing relationship. The Tribunal is satisfied the couple view their relationship as a long-term one.

38. The Tribunal is satisfied, having regard to the totality of the circumstances and the evidence provided that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is a genuine and continuing relationship and that they do not live separately and apart on a permanent basis.

    Findings

39. 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.

40. Given these findings, the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship. Therefore, the visa applicant meets cl.309.211(2) and cl.309.221.

41. There is no evidence before the Tribunal that the spouse of the applicant is prohibited from being the sponsor of the applicant. The Tribunal is satisfied that the sponsor at the time of the visa application was an Australian citizen who had turned 18. Therefore, the applicant meets cl.309.212 and cl.309.213. 

42. 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

43. 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, cl.309.212 and cl.309.213 of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Russell Matheson
    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).