Al-Bdoor (Migration)

[2021] AATA 3904

Al-Bdoor (Migration) [2021] AATA 3904 (21 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Sulaiman Gatea Sarheed Al-Bdoor

VISA APPLICANTS:  Mrs Fatimah Abbood Mujrim
Miss Zainab Albdoor
Master Hussein Albdoor
Miss Batool Albdoor
Miss Balquees Albdoor

CASE NUMBER:  1826911

DIBP REFERENCE(S):  BCC2018/2257185

MEMBER:Russell Matheson

DATE:21 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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; and

The secondary applicants meet:

·cl.309.311 of Schedule 2 to the Regulations.

Statement made on 21 July 2021 at 11:30am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – divorced in 2012 – remarried in 2018 – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.11, 309.311

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 13 September 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the applicant) is a female national of Iraq born in August 1984. She applied for the visa on 25 May 2018 on the basis of her relationship with their 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 sponsor appeared before the Tribunal on 7 April 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant.

5. The review applicant was represented in relation to the review by his 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 has applied for a Partner (Provisional) (Class UF) Subclass 309 visa on the grounds of being in a spousal relationship with her sponsor an Australian permanent resident at the time of application. The sponsor acquired Australian citizenship on 25 September 2019.

8. The background to the relationship provided below is based on information recorded in departmental systems, information provided in the visa application form (form 47SP), the sponsorship form (form 40SP), the applicant and sponsor’s written statements and the documents provided.

9. The applicant is a 36-year-old female from Iraq. She was previously married to the sponsor in 2002 and divorced in 2012. A Divorce Certificate was provided in the application dated 14 March 2012. The applicant and the sponsor have four children together. The applicant and her dependent children are residing in Iraq.

10. The sponsor is a 42-year-old male who was born in Iraq. It is claimed in the application that the applicant and sponsor divorced in 2012 because the sponsor left Iraq and the applicant and her children remained there, as the applicant’s father didn’t allow her to leave. The sponsor met another woman who sponsored him to Australia. They married in March 2012 and divorced in February 2018. There are two children from this relationship born in 2013 and 2015. After the breakdown of this marriage, contact was initiated leading to the parties remarrying. The applicant and sponsor have provided an Iraqi Marriage Certificate dated 31 May 2018 to evidence their remarriage.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

12. 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.

13. The evidence the parties provided to the Tribunal is recorded throughout this decision record.

    Whether the parties are in a spouse or de facto relationship

14. 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.

15. ‘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 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?

16. 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 parties’ religious marriage contract solemnised and registered in Iraq on 25 April 2018 and an Iraqi Marriage Certificate dated 31 May 2018. There is no evidence before the Tribunal to indicate that 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).

17. After careful consideration of all 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.

18. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant and the sponsor during the hearing and the Tribunal is satisfied that the explanations offered are reasonable and plausible. The parties provided a written submission through their representative outlining in detail the circumstances of their relationship over a lengthy period of time. The Tribunal places significant weight on the written submission (Doc ID: 7839263).

    Are the other requirements for a spouse relationship met?

    Financial aspects

19. 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.

20. The parties gave oral evidence and provided a written submission stating that they do not have any joint ownership of major assets or any joint liabilities due to the geographical difficulties of living in separate countries.

21. The sponsor provided receipts for money transfers sent to the applicant for the period March 2018 to January 2019 and he provided additional copies of receipts to the Tribunal for the period 5 May 2019 to 24 October 2020 totalling AUD12,450, evidence of 17 money transfers for the period 21 January 2019 to 25 January 2020 totalling AUD5,183 and and copies of receipts for the period 8 November 2020 to 22 March 2021 totalling AUD6,100. The sponsor stated that the applicant and their children are living with his parents in Iraq and he argues that the money sent to the applicant and his children is sufficient to cover their day-to-day living expenses as the cost of living in that country is cheap. The Tribunal accepts that the applicant is providing financial assistance to his family in Iraq and the cost of living is cheaper (53.03% cheaper than Australia as per November 2020). The sponsor also gave evidence that he gave his brother (Abdullah) in Iraq cash money (AUD60,000) to cover the relocation costs of his family to Australia if they are granted their visas. The sponsor’s brother provided a translated statutory declaration dated 7 April 2021 declaring that his brother gave him that amount in cash. The Tribunal places little weight on this evidence as there is no supportive evidence such as of the origin of the money or any financial records or transactions as to how the money was obtained by the sponsor. The sponsor gave evidence that he was employed full time working as a labourer in the building and construction industry until injuring his back in March 2019. He further stated that he is reliant on income insurance money he now receives to support his family in Iraq. The applicant had a sound knowledge of the sponsor’s employment history and income and payment of rent and household bills.

22. 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.

23. 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 a finding that the parties share day-to-day living expenses or pool their financial resources.

24. 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

25. 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.

26. The applicant and sponsor provided evidence that they shared the responsibility for the housework and responsibility for the care and support of the applicant’s children when the applicant accompanied by her children visited the sponsor in Iran in 2015, 2016 and 2017 as the sponsor considered himself a refugee because he had made claims against Iraq and could not return to that country due to fears for his safety and he chose to meet the applicant and his children in a third country (Iran).The sponsor stated that the fact his children are living in Iraq with their mother is a natural outcome given the parties live in separate countries and he was unable to return to Iraq due to fears for his safety in that country, but this did not prevent him from seeing his children in Iran even when he and the applicant were divorced.

27. The sponsor gave evidence that he travelled to Iran for the period 23 April 2018 to 8 May 2018 to meet the applicant and his children and a religious marriage was convened. The parties gave evidence that they lived together as a family unit during this time and that their children attended the wedding. The sponsor then travelled to Iran for the period 23 September 2018 to 3 January 2019 to visit the applicant and their children; although wanting to stay for a longer period the applicant had to return to Iraq as their children had to attend school. On 25 September 2019 the applicant acquired Australian citizenship by conferral and felt reasonably safe due to the changed conditions in Iraq to visit his wife and family in Iraq for the periods 27 November 2019 to 21 December 2019 and 1 March 2020 to 15 March 2020. He also travelled to Iran for the period 21 December 2019 to 10 January 2020 to visit his family.  The parties provided a limited amount of photographic evidence of their meetings and living in a household environment as a family unit. The parties gave detailed and consistent evidence of sharing the household responsibilities and duties when living together in Iran and Iraq.  

28. The sponsor further stated that he provides financial assistance to the children for their daily living expenses and education. The parties provided evidence that the applicant and her children are currently living with the sponsor’s family in Iraq which is the cultural norm after marriage.

29. The parties provided limited documentary and photographic evidence to the Tribunal and Department regarding their travel and living arrangements together and the care and support they provide to the applicant’s children. The Tribunal found their evidence persuasive and credible.

30. The Tribunal is satisfied the applicant and sponsor have consistent plans to establish a life together as spouses and live together as a family unit in Australia.

31. The Tribunal has considered the nature of the household. The Tribunal accepts there is a degree of difficulty in sharing a household and the responsibilities of a household when the applicant and sponsor live in separate countries. The parties provided limited evidence of any joint responsibility for the care and support of the applicant’s children.

32. Based on the evidence presented by the parties, the Tribunal accepts that they have lived together and have established a joint household together and that they share the responsibility for the housework when the sponsor visits and lives with the applicant in Iran and Iraq and they also share joint responsibility for the care and comfort of the applicant’s children.

33. The Tribunal places some positive weight on this aspect of the relationship.

    Social aspects

34. 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.

35. The parties provided a significant selection of photographs taken of themselves with each other, with friends and family and on different occasions in Iran and Iraq since their marriage in 2018. The photographs indicate that the applicant and the sponsor have undertaken some joint social activities, have been in the company of each other's friends and families and have travelled together. The parties have also provided photographs of their religious wedding ceremony in Iran attended by their children. The Tribunal notes that the applicant’s uncle, the sponsor’s father, mother, brothers and his cousin attended the wedding ceremony. The parties claim that more members of their families would have attended their wedding if the wedding was held in Iraq but there were circumstances beyond their control that prevented that.

36. The parties claim that they have always represented themselves to other people as being in a genuine and continuing married relationship and that family, friends and acquaintances recognised the nature of their relationship. The parties provided evidence that both their families support the relationship and that they have conversed by telephone/Face time and email.

37. The Tribunal accepts that the parties’ relatives believe the relationship is genuine and they have a sound knowledge of the inception and development of the relationship over time.  The parties provided five statements from friends who know the parties attesting to the genuineness of the relationship. The statements are brief and lack detail and give no information about the inception and development of the relationship over time or the parties’  history. The Tribunal accepts the declarants know the couple but places little weight on their declarations as convincing evidence as to the nature of the relationship. 

38. The parties provided a significant amount of photographic evidence to the Tribunal and limited evidence to the Department over a lengthy period featuring the applicant and sponsor in various social settings with family and friends in Iran and Iraq.

39. Having regard to that evidence, the Tribunal is satisfied the relationship is socially recognised. The Tribunal is satisfied the applicant and the sponsor represent themselves to others as being married and that others believe the relationship to be a genuine one. The Tribunal is satisfied they plan and undertake joint social activities together and as a family unit.

40. The Tribunal places some positive weight on this evidence.

    Commitment

41. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of 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.

42. The parties were originally married in 2002 and divorced in 2012.  The applicant and the sponsor have four children together from this relationship. The applicant and her dependent children are residing in Iraq with the sponsor’s family. The sponsor met another woman who sponsored him to Australia. They married in March 2012 and divorced in February 2018. After the breakdown of this marriage, contact was initiated by the sponsor leading to the parties re-marrying. The applicant and sponsor have provided an Iraqi Marriage Certificate dated 31 May 2018 to evidence their re-marriage. The Tribunal accepts the parties are lawfully married. The parties have been in a relationship for more than three years.

43. The Tribunal accepts that the parties have a commitment to each other and to the care and support of their four children. The parties presented a reasonable amount of documentary evidence of continued daily contact during periods of separation and a sound knowledge of each other’s family and siblings, current and future living arrangements, health issues (sponsor’s psychologist report), employment, financial resources, personal history, and future plans together. The Tribunal found the parties’ evidence consistent, detailed and indicative of being in a genuine marital relationship. The Tribunal considers the parties’ knowledge of one another and their everyday concerns is a function of this commitment.

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

1. 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.

2. 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

3. Based on 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.

4. 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 applicant meets cl.309.211(2) and cl.309.221.

5. 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 permanent resident who had turned 18. Therefore, the applicant meets cl.309.212 and cl.309.213. 

6. The secondary applicants are dependent children living at home with the applicant. They are full-time students wholly dependent upon the applicant for financial support for their basic needs such as food, clothing, and shelter. The secondary applicants were wholly reliant upon the applicant for a substantial period immediately before the time of application. The secondary applicants are wholly reliant on the applicant at the time of decision, which is greater than any reliance on any other person or source of support.  

7. The Tribunal is satisfied that the secondary applicants are members of the family unit of, and made a combined application with, the primary applicant who satisfies the primary criteria in Subdivision 309.21. Therefore, the secondary applicants meet the requirements of cl.309.311 of Schedule 2 to the Regulations.

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 applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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; and

   The secondary applicants meet:

   ·cl.309.311 of Schedule 2 to the Regulations.

   Russell Matheson
   Member

   
   

10. 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).