Al Huraishi (Migration)

[2022] AATA 3316

Al Huraishi (Migration) [2022] AATA 3316 (26 August 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Salim Kassar Al Huraishi

VISA APPLICANT:  Mrs Rajaa Ghanim Muslim Muslim

CASE NUMBER:  2008162

DIBP REFERENCE(S):  BCC2018/3623838

MEMBER:Russell Matheson

DATE:26 August 2022

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 26 August 2022 at 9:53am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married – child born of the relationship – money transfers – awareness of living arrangements – periods residing together as spouses in Iraq – comfort and emotional support – evidence about communication – decision under review remitted   

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309. 212, 309.213, 309.221; 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 Immigration on 7 May 2020 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 applicant is a female national of Iraq born in March 1986. She applied for the visa on 24 September 2018 based on 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 because the delegate was not satisfied that the applicant is the spouse of the sponsor. 

4. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

5. The sponsor (review applicant) appeared before the Tribunal on 25 August 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant. 

6. The sponsor was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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.

10. 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

11. Clause 309.211(2) and 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.

12. ‘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 the circumstances of the relationship. This includes evidence of the financial and social aspects of the relationship, as well as, 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?

13. 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’ marriage certificate registered in Iraq on 22 April 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).

14. 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. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record.

    Are the other requirements for a spouse relationship met?

    Financial aspects

15. 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.

16. The sponsor has provided evidence of several money transfer receipts to the Department and to the Tribunal from November 2017 to June 2020. These indicate that the sponsor is supporting the applicant and their biological child financially through an average payment of about AUD200 per month. The sponsor is the sole income earner and owns a taxi business in Australia.

17. The sponsor and applicant displayed through oral evidence a sound knowledge of each other’s current financial situation.

18. There is no evidence before the Tribunal of there having been any wills made listing the other as a beneficiary nor any evidence as to their being nominated as a beneficiary of the other’s superannuation.

19. Acknowledging that the parties have always lived in different countries and continue to do so at the time of this decision, the Tribunal is not concerned that the extent of their financial commitment is limited in terms of their shared finances and plans.

20. In their circumstances, the Tribunal is satisfied that the parties share finances in a manner commensurate with their own personal situations at this time. That is, the sponsor, who resides in Australia, continues to support the applicant who resides with her family and child in Iraq.

21. The parties have no joint liabilities or major assets. 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 limited evidence before the Tribunal to support that the parties share day-to-day living expenses or pool their financial resources.

22. 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 limited significant financial support to the applicant. The Tribunal places limited weight on this aspect of the relationship.

    Nature of the household

23. 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.

24. The Tribunal notes as the parties have resided in separate countries since the commencement of their relationship in 2017, the ability to provide evidence of a shared household can be difficult.

25. The applicant gave birth to the parties’ son in July 2021. The applicant provided a copy of the child’s birth certificate indicating the sponsor is the father and she is the mother. The applicant and the sponsor are currently living together in Iraq. The parties provided evidence of a lease agreement for a property in Najaf Kufa, for the period 1 September 2020 to 1 September 2021. The parties gave evidence of living at this address for a period of 12 months before the sponsor returned to Australia in January 2022. The sponsor returned to Iraq in July 2022 and the parties are currently residing together with their child in a hotel in Iraq awaiting the outcome of their visa application.

26. The parties provided a reasonable amount of documentary and photographic evidence to the Tribunal and Department regarding their living arrangements in Iraq and the care and support they provide to their child. The Tribunal found their evidence to be very persuasive and credible.

27. The applicant and sponsor in their written and oral submissions gave detailed and consistent evidence about their living arrangements. The Tribunal found them to be persuasive, genuine and credible and is satisfied that the parties live together when the sponsor visits Iraq. The parties provided evidence of sharing the household duties and described the individual tasks they undertake and the cultural basis for these tasks in detail. They have provided consistent evidence of their living arrangements and details about their daily lives. The Tribunal accepts that the parties also share joint responsibility for the care and support of their child.

28. Having considered the above evidence carefully, the Tribunal is satisfied that, in circumstances where they have a limited ability to share a household in person, they have made the best of their current situation living in separate countries.

29. Based on the limited evidence above, the Tribunal is satisfied that the applicant and sponsor have resided together as spouses in Iraq, and that they have made plans to reside together as spouses in Australia.

30. Based on the oral evidence of the sponsor and statements presented by the parties, the Tribunal accepts that the parties live together, they have established a joint household together and they share the responsibility for the housework when the sponsor visits the applicant in Iraq. The Tribunal also accepts that the parties share joint responsibility for the care and support of their child. The Tribunal places strong weight on this aspect of the relationship.

    Social aspects

31. 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.

32. The parties provided limited photographic evidence and a video of their social activities in their primary application and to the Tribunal. The parties have also provided photographs of their traditional wedding ceremony and reception. The parties provided statements (Form 888) from the applicant’s friends attesting to the genuineness of the parties’ relationship. The Tribunal places little weight on the statements as they are generic and provide little insight into the inception and development of the relationship over time. Although the parties have provided limited evidence that demonstrates the social aspects of their relationship, the Tribunal found the sponsor’s and applicant’s oral evidence persuasive and genuine at the hearing. The Tribunal accepts that the parties’ close relatives believe the relationship is genuine and they have a sound knowledge of the inception and development of the relationship over time as the marriage was culturally arranged.

33. On balance, the Tribunal accepts that the applicant and the sponsor plan and undertake social activities when 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 some relatives view the relationship as a genuine and committed one.

34. The Tribunal places limited weight on this evidence.

    Commitment

35. 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.

36. The applicant and the sponsor claim to have met for the first time in May 2017 and were married on 22 April 2018. They have provided a marriage certificate registered in Iraq. The Tribunal accepts that the applicant and the spouse are lawfully married.

37. The relationship has been in existence since May 2017, for a period of over five years. The applicant in her written submissions and emails spoke about her emotional reliance on her husband and her need for support from him. The Tribunal accepts that the parties provide each other with comfort and emotional support.

38. The parties provided detailed evidence about their communication, their cohabitation together in Iraq and their future plans together as a family unit. The Tribunal is satisfied that they have previously discussed their plans and aspirations. The Tribunal is satisfied they view the relationship as a long-term one. The Tribunal places significant weight on the fact that the couple have a child together and both are committed to the child’s upbringing. That also suggests that they view the relationship as a long term one. The Tribunal is satisfied they rely on each other for emotional support and companionship.

39. The Tribunal is of the view that separating parents from their children during an early developmental phase would be an undesirable outcome which would impact the health and future outcomes for a child. The bond that children develop with their parents, particularly as babies and toddlers, is fundamental to their flourishing and children without secure parental bonds are more likely to have behavioural and literacy problems. The couple have a son, and boys growing up in poverty are two and a half times less likely to display behavioural problems at school if they have secure attachments with parents in the early years. (Moullin, Sophie; Waldfogel, Jane; Washbrook, Elizabeth, Baby Bonds: Parenting, Attachment and a Secure Base for Children, March 2014).

40. Having considered the totality of the couple’s circumstances, the Tribunal is satisfied that the visa applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is satisfied the relationship between them is genuine and continuing. The Tribunal is satisfied they do not live separately and apart on a permanent basis.

    Findings

41. 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.

42. 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.

43. 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. 

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, 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).