Al-Masoudi (Migration)

Al-Masoudi (Migration) [2024] AATA 459 (18 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Ahmed Al-Masoudi
VISA APPLICANT:  Mrs Rusul Jabbar Oglah Oglah
REPRESENTATIVE:  Mr Omar Hassan (MARN: 1573966)
CASE NUMBER:  2107244
DIBP REFERENCE(S):  BCC2019/376648
MEMBER:Peter Emmerton
DATE:18 January 2024
PLACE OF DECISION:  Adelaide
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 of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations

Statement made on 18 January 2024 at 3:35pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – couple have two children together – Tribunal accepts that the marriage was valid – parties are in a genuine spousal relationship – evidence provided to demonstrate meaningful and regular ongoing communication between the visa applicant and the sponsor – have a commitment to a shared life together to the exclusion of all others – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
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 Home Affairs on 24 March 2021 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 7 February 2019 on the basis of 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211(2) because they were not satisfied that the sponsor and the applicant were in a genuine and continuing relationship.
The parties were invited on 9 August 2023, via their representative to appear before the Tribunal in a hearing on 12 September 2023 at 10-30am - SA time.
A request was received on 11 September 2023 from the representative for a postponement to which the Tribunal agreed and rescheduled the hearing to 16 January 2024, 10-30am SA time.
The representative was contacted by the Tribunal on several occasions to seek responses to their communications including the representative’s failure to respond to the hearing invitation and enquiries in relation to the provision of evidence as required by the Practice Directions. It is additionally noted that the SMS reminders in relation to the hearing were sent on 9 January 2024, 7 days prior to the hearing and 15 January 2024, the day prior to the hearing.
In addition, the Tribunal attempted to also contact the review applicant on their listed home and mobile telephone numbers on 11 September 2023. A message was left on the mobile number to ensure they were aware of the proceedings following a lack of response from the representative to the Tribunal’s enquiries relating to the case on 7 September 2023. It is noted the representative was successfully contacted on 11 September 2023 following the unsuccessful attempts to contact the review applicant.
On 8 January the Tribunal left a message on the representative’s voicemail requesting a call back in relation to their client’s intentions in relation to the impending rescheduled hearing. No reply was received until 12 January 2024. The Tribunal accepts the assertion made by the representative they had found it difficult to get responses from the sponsor and it was only recently he revealed medical issues associated with a physical attack.
The review applicant appeared before the Tribunal on 16 January 2024 to give evidence and present arguments.
Considering the challenges experienced by the representative to obtain the evidence he needed in order to present the case to the Tribunal it agreed to accept corroborating evidence by 12 noon 18 January 2024. This was completed in a timely manner and the Tribunal was able to consider substantially more evidence than was provided to the delegate prior to their decision.
The review applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the couple is in a genuine spousal relationship as defined by section 5F of the Act.
In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.
Whether the parties are in a spouse or de facto relationship
Cl. 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.
‘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 husband and wife 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.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The delegate accepted a Marriage Certificate as evidence that the couple were legally married. The Certificate is dated 1 July 2017, issued by a Judge, Personal Status Court, Karboola, Iraq. The Tribunal also accepts this evidence. 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 spousal relationship met?
In forming an opinion whether they are in a spousal relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects, 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 which is attached to this decision.
The applicant lodged a valid application for a Class UF Partner (Provisional) and BC Partner (Migrant) visa on 7 February 2019 on the grounds of being in a spousal relationship with an Australian permanent resident, Mr Ahmed Al-Masoudi.
The visa applicant is a female Iraq national by birth.
The sponsor is a male Australian permanent resident.
The Department has declared the DOB of the sponsor and the DOB of the applicant. The Tribunal accepts this as fact and therefore it is agreed that both parties have met personally since turning 18.
Both the visa applicant and the sponsor are therefore greater than 18 years of age.
It is claimed that the review applicant and visa applicant met in 2016. Travel records show this must have occurred when the sponsor was in Iraq between 16 October 2016 and 26 December 2016. It notes their marriage occurred on 1 July 2017 and a child was born in June 2018 and a second child was born in 2020. Documentary evidence has been presented to demonstrate the children’s parents are as claimed in the form of passports originating in Iraq. The Tribunal had requested DNA testing be undertaken to establish the genetic link between the sponsor, his wife the applicant and the child. This request was issued on 11 September 2023 via their migration agent. No response was received in relation to the request. This was prior to the Iraq produced passports being provided to the Tribunal.
The Tribunal notes that the case was originally dismissed on the grounds the Tribunal had No Jurisdiction. This appears to have occurred due to a mistake made by the representative when completing the application review form. The matter was reinstated following a request from the migration agent explaining his error which was accepted by the Tribunal.
The Tribunal has considered the scant documentary evidence provided to the Department and the failure to provide the Tribunal with substantial additional evidence. The Tribunal communicated with the authorised representative via email, requesting detailed additional information in support of the review application to be provided at least 7 days prior to the hearing. The request was sent on 11 September 2023. No submission was received in response. The letter stated the following.
….‘In assessing your case, we must consider either regulation 1.09A (de facto relationship) or
1.15A (spouse relationship) of the Migration Regulations. Regulations 1.09A and 1.15A provide that we must consider all of the circumstances of your relationship, including the following matters:
The financial aspects of the relationship, including: any joint ownership of real estate or other major assets; any joint liabilities; the extent of any pooling of financial resources, especially in relation to major financial commitments; whether one person in the relationship owes any legal obligation in respect of the other; and the basis of any sharing of day-to-day household expenses.
The nature of the household, including: any joint responsibility for the care and support of children; the living arrangements of the persons; and any sharing of the responsibility for housework.
The social aspects of the relationship, including: whether the persons represent themselves to other people as being married to each other or in a de facto relationship with each other; the opinion of the persons’ friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.
The nature of the persons’ commitment to each other, including: the duration of the relationship; the length of time during which the persons have lived together; the degree of companionship and emotional support that the persons draw from each other; and whether the persons see the relationship as a long-term one.
List of evidence to provide
You are requested to provide the following information as well as any other information you may have in support of your application. The list is provided as a guide only and is not a definitive list of evidence that may be provided.
Type of evidence
Examples
Birth certificates for children of the relationship
· Certified copies of birth certificates for children of the relationship
Evidence that you have lived together
· Joint rental agreement, joint local authority registration under the same address, utility bills appearing in joint names, etc
Evidence of ongoing contact over the period of your relationship
· Emails, phone calls, letters, chat history, video conferencing, etc
· At this stage please limit to a total maximum of 50 pages
Evidence of marriage- related events
· Photos of engagement ceremony, cultural marriage rituals, wedding reception, honeymoon, etc.
· Photos should be labelled with a description of the photograph and names of the people who appear in them
· At this stage please limit to a maximum of 20 photos
Evidence that you and your partner are socially accepted as a couple
· Joint invitations and activities, friends and acquaintances in common, etc
Evidence of the financial aspect of your relationship
· Joint ownership of real estate or other major assets (cars, appliances, etc) and any joint liabilities (loans, insurance, etc);
· Sharing of finances;
· Legal commitments that you and your partner have undertaken as a couple;
· Evidence that you and your partner have operated joint bank accounts for a reasonable period of time;
· Sharing of household bills and expenses; or
· The terms of your wills.
Evidence of cohabitation as a couple
· Statements outlining your living arrangements;
· Joint ownership or rental of the residence in which you live;
· Joint utilities accounts (electricity, gas, telephone, etc);
· Joint responsibility for bills and day-to-day living expenses;
· Joint responsibility for children;
· Correspondence addressed to both you and your partner at the same address; or
· Joint travel (itineraries, booking vouchers, receipts, etc)
Written statements from applicant and sponsor
· Statements listing history of the relationship. How, when and where your first meeting took place and how the relationship developed, etc’ ….
It is also noted that a request had been received by the Tribunal to delay the Hearing following an invitation sent on 9 August 2023 for a hearing scheduled on 12 September 2023. The Tribunal agreed to the delay and rescheduled the hearing to 16 January 2024 to ensure adequate time for the preparation of evidence to be submitted.
The Tribunal further notes that aside from its unanswered requests for information which may have supported the applicant’s case the Department and delegate requested evidence on several occasions, which was also not responded to in a timely manner. The requests were dated 27 November 2019, 3 February 2020 and 13 January 2021.
The Tribunal notes that in-spite of the delegate’s and the Tribunal’s best attempts the applicants and their representative appear to have failed to communicate in a meaningful way leading up to the scheduled hearing. Following the hearing substantial evidence was provided to the Tribunal which adds substantial support to the applicant’s application.
The Tribunal notes the claim the applicant had been attacked and suffered severe life-threatening injuries with a subsequent usage of substantial pain killing medications. No evidence was submitted to support this assertion, but the Tribunal accepts that this is in some way true. This was demonstrated during the hearing by the appearance of recent clear physical trauma of the kind the applicant had stated prior to the hearing and in written statement to the Tribunal post hearing. It is well aware of the effects of Post Traumatic Stress and accepts this may well explain the inaction previously undertaken.
The Tribunal provided 2 days for the sponsor to provide any additional documents in support of this case, noting the substantial time from the earlier scheduled hearing in September 2023 and the fact the representative contacted the Tribunal on 12 January 2024 indicating they would request a further week to provide supporting documents. The deadline for documents was 12 noon SA time, 18 January 2024. It is the view of the Tribunal that if the documentary evidence does already exist as claimed, adequate time is available to submit that evidence. The Tribunal reminded the sponsor that there had been nearly 3 years from the time of the Departments refusal which clearly outlined the evidence missing which may have supported their application. The sponsor made claims that some photographs had been submitted to the Department but the Tribunal having interrogated the Departmental file could find no such evidence. The instructions issued by the Tribunal were complied with and a substantial quantity of corroborating evidence in favour of the applicant was produced prior to the deadline.
The Tribunal has considered all aspects of the relationship.
There is sufficient evidence before the Tribunal to satisfy it that the relationship is in the view of the Tribunal both genuine and continuing and the visa applicant and the review applicant have an intention to live together on a permanent basis.
Financial Aspects of the Relationship
In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses.
The applicant and the sponsor had not, despite several requests, provided any evidence to either the Department or the Tribunal prior to the hearing, regarding the financial aspects of their relationship.
The Tribunal was told by the sponsor during the hearing that he sends money regularly to his wife, approximately USD $500-$600 per month via money transfer.
Post hearing verifiable receipts indicating substantial financial support being provided to the visa applicant and their 2 children were produced. It is verified and noted by the Tribunal that approximately AUD $10,000 over 2 years, up to November 2023 was transferred to the visa applicant in Iraq.
It is accepted by the Tribunal that the visa applicant is working for the Iraq Government as a pathologist and lives with her 2 children in her parent’s home. It is therefore a reasonable assumption that this would reduce her need for funds from her currently unemployed husband.
It is noted that the sponsor has spent approximately 3 years in total living with his family in Iraq since the couple’s marriage, (roughly 50%). This would have reduced the need for funds transfer considerably when coupled with the fact the applicant has a substantial senior role as a Pathologist and Doctor.
The Tribunal places moderate weight on the evidence in support of the financial aspects of the relationship. It therefore finds the financial aspect of the relationship are met.
Nature of the Household
In relation to the nature of the household aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.
Any joint responsibility for the care of children. No evidence was initially provided to demonstrate joint responsibility for the care of young children. The Tribunal notes the young children of the visa applicant who are claimed to be the children of the sponsor. It also notes no evidence had been provided prior to the hearing, in support of this claimed circumstance despite the Tribunal’s request for the relevant DNA testing in order to establish the genetic links, which was not responded to.
The Tribunal has been provided with substantial evidence post hearing that shows a verifiable link between the sponsor, his wife and their 2 children. Passports have been viewed and accepted as genuine. A very substantial portfolio of annotated and unannotated photographs demonstrating the familial relationships has been perused by the Tribunal. It would be very difficult to stage such photographic evidence when considering the young children, their obvious trust and attraction to both parents. The varied locations, activities and timing further reassured the Tribunal of their genuineness.
The living arrangements of the visa applicant and the sponsor were considered. The couple have been separated by geography for half of their marriage and domiciled as a family for the other half. It is noted and corroborated with flight tickets and Passport entries that the sponsor was present for both births and spent half his married life with his wife. Prior to the submission of this evidence the travel undertaken by the sponsor suggests that cohabitation was possible for several periods of time but no evidence corroborating this was made available. The delegate had no way to verify the claims.

Any sharing of responsibility for housework. The Tribunal notes no evidence of domestic arrangements had been provided to the delegate or the Tribunal. The Tribunal is able to accept the Statement/Statutory Declaration made by the parties in which they outline their domestic arrangements that indicates a family unit.
The Tribunal notes the following statement made by the delegate in their decision.
‘The applicant and the sponsor have not provided any documentary evidence that they have ever lived together as a couple, sharing a household and the responsibilities of a household. I have placed weight on the fact that the applicant and the sponsor are currently living in different countries. However, the applicant and sponsor have not provided any evidence of their future plans and preparations to reside together as spouses.’
As additional evidence has now been provided to the Tribunal, it does not concur with the delegate’s statement.
The Tribunal places substantial weight on the cumulative evidence presented in relation to the nature of the household. It therefore finds the nature of the household aspects are met.
Social Aspects
In relation to the social aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities.
The applicants had initially provided only 2 Form 888 Witness Statements / Statutory Declarations both dated 20 February 2019. They were written by the sponsor’s brother and sister. They are almost identical in form and provide very brief statements that the sponsor and applicant having a child. They state they have known the sponsor all their lives and his wife for 2 years and believe the relationship is genuine. It is noted that the sponsor in the hearing stated his brother had met his wife when in Iraq, his sister had only conversed via electronic means. No further elaboration or anything meaningful was stated. No other evidence had been provided to the delegate. The Tribunal now notes that there is a great deal of photographic evidence to substantiate the social aspects of the married couple. This includes photographs of their children, family members and friends. There is adequate evidence including photographs of the family members and the wedding and associated celebrations.
The Tribunal has perused substantial telephone and video call logs and associated incidental photographs in social media which provide strong evidence of ongoing daily interactions between the family, the sponsor and the visa applicant.
The information now provided does satisfy the Tribunal that the applicant and sponsor present themselves to family and friends as being in a committed spousal relationship and are regarded by others as such.
The Tribunal places substantial weight upon evidence provided in support of the social aspects of their relationship. It therefore finds the social aspect of the relationship are met.
Nature of the Commitment
In relation to the nature of the persons commitment to each other, the Tribunal has considered the following. The nature of the commitment to each other, the circumstances of the couple meeting, relationship development, length of time they have lived together, the degree of companionship and emotional support that is drawn from each other and whether the couple see the relationship as long-term.
The applicant and sponsor claim to have known each other since 2016 and were married on 12 July 2017. They claim a child was born in 2018 and a second child was born in 2020. Evidence has been provided to clearly demonstrate the child’s parentage and the veracity of these claims. The verifiable existence of 2 children being raised by their parents is extremely strong evidence of the commitment to each other and the relationship exhibited by the sponsor and the visa applicant.
The Tribunal accepts the applicant and sponsor are lawfully married as per the Marriage Certificate provided. Again, it is noted that there is now substantial corroborating evidence of the marriage for example, photographs on the day of the couple, their friends, participating family and traditionally staged photos of the bride as would be expected by the Tribunal. The it further accepts the evidence provided that the sponsor’s brother is known to the applicant and was present at the couple’s wedding as claimed by the sponsor at the hearing.
As already stated, the Tribunal has perused substantial telephone and video call logs and associated incidental photographs in social media which provide strong evidence of ongoing daily interactions between the family, the sponsor and the visa applicant.
Initially it was only possible to observe that the sponsor has spent substantial periods of time away from Australia since the parties were married. Evidence showed the sponsor had travelled to Doha and Dubai. It may be assumed this culminated in time spent with his family but there was no evidence to demonstrate what he did upon arrival in either transit airport or whether he travelled on to his family and cohabited. He claimed in the hearing that the time was spent with his wife and family. Under questioning the sponsor claimed to have been solely committed to his wife since they married. As the evidence which was subsequently presented to the Tribunal only after the hearing, in the form of Passport activity and airline tickets clearly indicate this is most likely to be as claimed. Only the Tribunal was able to conclude the legitimacy of the claims. The delegate would have been unable to determine there was any support for the claimed relationship.
The Tribunal has reflected upon the fact that virtually no evidence was provided to the delegate in support of the claimed relationship. It may have resulted from a combination of poor understanding of the stringent immigration requirements Australia rightly places upon applicants, combined with hubris. Or possibly a belief that because they believed their relationship was genuine and had lived together, the sponsor had no need to provide appropriate evidence, regardless of the efforts made by the Departmental delegate and the Tribunal.
There is now clear evidence the sponsor and applicant see the relationship as a long-term one, that they draw emotional support and companionship from each other and that they have a commitment to a shared life together to the exclusion of all others.
On the evidence provided the Tribunal is satisfied that the applicant and sponsor provide each other with companionship and emotional support, and that they have a joint commitment to a shared life together.
Evidence has been provided to adequately demonstrate that the couple have in fact cohabited as a family unit for approximately 50% of the time following their marriage.
The Tribunal determines that there is evidence provided to demonstrate meaningful and regular ongoing communication between the visa applicant and the sponsor to strengthen the body of evidence necessary to support the genuineness of this relationship.
The Tribunal places weight upon the evidence provided in support of the nature of the commitment to each other. It therefore finds the nature of the commitment aspect of the relationship are met.
The Tribunal has found evidence that the visa applicant and the sponsor have invested significantly in this relationship that satisfy it, their intentions are a commitment to a shared life as husband and wife to the exclusion of all others, in a relationship that is genuine and continuing, and that the couple will live together, or not live separately and apart on a permanent basis.
The Tribunal, having considered all the circumstances of the relationship, the geographic dislocations, plus the Covid-19 pandemic, finds that the financial, household, social and commitment aspects of the relationship are indicative of a couple with a genuine, mutual commitment to a shared life together.
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.
Therefore, the visa applicant does meet cl.309.211 and cl.309.221.
For the reasons above, the visa applicant does satisfy the criteria for the grant of the visa.
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 of Schedule 2 to the Regulations
·cl.309.221 of Schedule 2 to the Regulations
Peter Emmerton
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).

[2024] AATA 459

18 January 2024

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