Ali (Migration)

[2020] AATA 6137

Ali (Migration) [2020] AATA 6137 (12 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khaled Mohamed Mahmoud Ali

CASE NUMBER:  1718185

DIBP REFERENCE(S):  CLF2012/124945

MEMBER:Nicholas McGowan

DATE:12 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 12 August 2020 at 11:43pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Federal Circuit Court remittal – genuine and continuing relationship – relationship ceased – new relationship with a Moroccan national – no joint financial commitments or pooling – no joint responsibility for the sponsor’s child – limited social recognition – family violence claims – mutual commitment to a shared life – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 5, 65,359, 365, 366
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

REVIEW

1. The applicant applied for the visa on 20 June 2012.

2. On 30 July 2014 a delegate of the Minister for Immigration refused to grant the applicant a Partner (Temporary) (Class UK) Subclass 820 visa under s.65 of the Migration Act 1958 (the Act).

3. On 30 July 2014 the Minister’s delegate refused to grant the visa on the basis that the evidence the applicant provided in relation to the provisions under regulation 1.15A were not sufficient to demonstrate the applicant and his sponsor were in a genuine and continuing relationship at the time of the lodgement of the visa application. It followed, that the delegate found the applicant was not the spouse of his sponsor as defined under section 5F of the Migration Act and as required for the purposes of meeting the criteria for the grant of the partner visa. As the delegate had found the requisite ‘relationship’ did not exist at the time of lodgement, the delegate was not required to go on and consider the exceptions available to the applicant, including the applicant’s claim he suffered relevant family violence perpetrated by his sponsor.

4. The applicant appealed the 30 July 2014-refusal-decision to this Tribunal on 30 July 2014.

5. The applicant was invited to, and appeared before, a scheduled public hearing on 23 June 2015 before Member Mary Cameron.

6. On 22 September 2015, the Tribunal (Member Cameron) found the applicant and sponsor never had a mutual commitment to a shared life as husband and wife to the exclusion of all others and was not satisfied that the relationship between the applicant and sponsor was genuine and continuing.

7. The applicant did not satisfy the Tribunal that the applicant was ever the spouse of the sponsor as defined by section 5F of the Act, having had regard to the relevant regulations, and therefore did not meet the requirements of clause 820.221(2) at the time of application and clause 820.221(3)(a) at the time of decision.

8. The applicant appealed the Tribunal’s refusal decision to the Federal Circuit Court.

9. On 15 August 2017 the Federal Circuit Court ordered this Tribunal to determine the application made to it for review of the decision of the delegate. 

10. The Minister, on behalf of the Tribunal, concede that the Tribunal (differently constituted) denied the applicant procedural fairness and that this constituted a jurisdictional error in circumstances where a section 375A certificate on the applicant’s file was not disclosed to the applicant and at least some of the documents subject of the certificate were relevant, or potentially relevant, to the issues arising on the review.

    Public hearing dated 21 February 2019.

11. The applicant was invited to attend a further public hearing because the Tribunal (newly constituted) had considered the material before it and had been unable to make a favourable decision on that information alone.

12. The Tribunal asked whether the applicant had read the previous refusal decision and discussed the non-disclosure of the certificates attached to his departmental file.

13. During the hearing the Tribunal sought to clarify whether the applicant had been provided with a copy of the certificates which were the subject of the remittal from the Court. The applicant indicated to the Tribunal he had not been provided with the certificates. The Tribunal enquired as to whether the applicant was represented. The applicant indicated his agent was not with him (on that day). It was not clear to the Tribunal whether the applicant continues to be represented. Nonetheless, it is clear to the Tribunal that the applicant sought a copy of the certificates in a conversation with a Tribunal registry person on 30 August 2019 (folio 19 of the Tribunal’s file). It is also clear that the applicant followed-up that telephone conversation with a written email (folio 21 of the Tribunal’s file) requesting a copy of the certificates as he discussed with the Registry person on 30 August 2019.

14. From the Tribunal’s file, it is apparent that the Tribunal had emailed the applicant (by means of email on 14 May 2019) the two certificates at folio 187 and 185, notwithstanding 186 was excluded (incorrectly). The Tribunal undertook to provide to the applicant any and all certificates and adjourn the review until another day, to allow the applicant every opportunity to consider the certificates and make any submission, including on their validity. The Tribunal also made cleat to the applicant that upon a resumption of the hearing into his review the Tribunal would provide a further opportunity for the applicant to ad or expand in any way on the evidence and arguments he has made to date in respect to his claimed relationship with his sponsor.

15. During the hearing the Tribunal enquired whether the applicant was currently in a relationship with his sponsor, or any other person. The applicant confirmed the relationship with his sponsor had not resumed. The applicant told the Tribunal he had married another woman and advised she expected their first-born child in April of 2019. The applicant told the Tribunal his new partner is a Moroccan national, living in Spain. He told the Tribunal they met three years ago in Spain. He told the Tribunal he planned to bring her to Australia should he be granted a permanent visa to live in Australia. He also told the Tribunal he was seeking a Schengen visa to visit and see both his new wife and soon to be born child.

16. Post-hearing (21 February 2019) the Tribunal released to the applicant the certificates at folio 187, 186, 185 of Department file CLF2012/124945 and folio 32 of the Tribunal’s file 1413796.

    Resumed public hearing dated 22 October 2019

17. The Tribunal scheduled the continued review (second hearing) for 24 September 2019.

18. On 6 September 2019 the applicant wrote and requested a postponement as he would be overseas at that time.

19. The Tribunal agreed to the adjournment request and rescheduled the continued public hearing for 22 October 2019.

    Non-disclosure certificates

20. Given the applicant was unrepresented at the previous hearing, and given the importance of the need for the applicant to understand the relevance of the various certificates, and what information is covered by each, the Tribunal examined each certificate individually at the public hearing to ensure the applicant understood (as best the Tribunal can ensure such) what is on his file, and what any certificate or information may mean for his case. The Tribunal also clarified during the hearing the evidence from the applicant himself on the various files, and accounted for each succinctly and as plainly, as possible.

21. The certificates were discussed in accordance with their appearance on the files, from earliest to most recent.

22. The first certificate (on the Department of Immigration file CLF2012/124945) is present at folio 185. It is a 375A certificate of non-disclosure. This certificate has been provided to the applicant, and he has confirmed this at the public hearing held 22 October 2019. This section 375A certificate pertains to folios 100-106. As this certificate is neither dated, nor signed, or contains the name of the officer who issued the certificate, the Tribunal found it is not valid. For that reason, it has not asked the applicant to make any submission on the validity of that certificate. It follows therefore that the non-disclosure certificate does not apply to folios 100-106. The information at these folios are a single claim (made 16 September 2013) by an anonymous person (informant) who states s/he is a mutual friend of the applicant and sponsor. The informant claims the applicant separated five months into his relationship with his sponsor and states the applicant’s intention was to get a visa (sic for Australia). The informant also claims the applicant is already married in Egypt. The Tribunal made clear to the applicant that if he sought a copy of these folios, he was free to do so. The Tribunal indicated any formal request would be granted access in full (minus any appropriate redactions under law). The Tribunal did not put the information contained at these folios to the applicant formally. It did not do so because the Tribunal has not placed any adverse weight on the evidence at folios 100-106. It has come to this conclusion because the source is anonymous, and the information is so scarce and lacking in detail that the Tribunal cannot possibly, or fairly rely (even in part) upon it. The applicant told the Tribunal if he had the intention of merely getting a visa, he would have stayed in that relationship until he obtained his permanent visa. The applicant denied having been married previously in Egypt, and cited evidence he has submitted since the Tribunal’s last hearing, including a Ministry of Interior document from Egypt (at folios 50-52) which the applicant claims is further evidence that he has never been married before in Egypt. At face value, and in the absence of evidence to the contrary, the Tribunal accepts the applicant’s evidence in this regard.

23. The second certificate (on the Department of Immigration file, stands at folio 186). It is a section “375” certificate. This certificate has been provided to the applicant, and he has confirmed this at the public hearing held 22 October 2019. This section “375” certificate does not clearly (or otherwise) refer to any particular folio(s). Moreover, there is no such thing as a section “375” certificate. Even were the Tribunal to accept it is a section 375A certificate, no details have been completed, for example, outlining the folios covered, the reasons for the non-disclosure as they pertain to those folios, the name of the issuing officer, the date it came into effect. Accordingly, the Tribunal found this certificate invalid, and therefore did not invite any submission from the applicant on its validity (or contents), as none was required in the circumstances. The Tribunal nonetheless discussed the Tribunal’s finding in regards to this certificate, and made it clear to the applicant, in this instance, it has no effect on his case. The applicant was invited to make any comment whatsoever, and declined.

24. The third certificate (on the Department of Immigration file, stands at folio 187). It is a 376 certificate of non-disclosure. This certificate has been provided to the applicant, and he has confirmed this at the public hearing held 22 October 2019. This section 376 certificate pertains to folios 100-106 (the same folios examined and considered above as part of the purported ‘375’ certificate found to be not valid). As this certificate is neither dated or signed, the Tribunal has found the section 376 certificate not valid. As the information contained by the invalid certificate relates to the same identified by the invalid section ‘375’ certificate (referred to above) no adverse weight has been placed on any of the information, as this has been discussed and considered (above). The applicant was invited to make comment on either the validity of the certificate, or the information it purported to cover, and declined.

25. The fourth certificate (on the Department of Immigration file, stands at folio 32 of the Tribunal’s file 1413796). It is a 375A certificate of non-disclosure. This certificate has been provided to the applicant, and he has confirmed this at the public hearing held 22 October 2019. This section 375A certificate pertains to information contained in folio/s “(sent via email)”, logically, folio 33 (over page) as appearing on the same file. As this certificate has not been signed, the Tribunal has found the section 375A certificate is not valid. While the Tribunal found the certificate not valid, it nonetheless invited the applicant to make any comment or submission, which he declined. The information covered by that certificate was then shared during the hearing with the applicant (to the extent it could be minus third-party identification). The information at folio 33 is a claim by a person (named, but not revealed by the Tribunal to the applicant because the information was given on the basis it remains anonymous. While not obliged to adhere to this, the Tribunal believes in this instance, it is appropriate to do so having considered the matter carefully and weighed the right of the applicant to know against the need to protect the identity of the informant in the circumstances). The informant claims the applicant is a male prostitute and has had relationship with numerous “…woman of muslim varity…”, and claims the applicant was a “…monetary user emotional abuser that committed immigration fraud…”.  Consistent with the requirements of 359AA the information was put formally as specified under law, and specifically, the applicant was advised he may comment on or respond to the information, either at the hearing, or at a later time (post-hearing). The applicant chose to respond at the hearing. The applicant told the Tribunal he was not a prostitute; the applicant said he was a victim; the applicant asserted he is not a person accused of anything. The applicant verbalised that he felt the words were intended to hurt him, and get revenge upon him, and asked why the person did not provide any evidence against him. The applicant said he was willing to answer any accusations brought against him. As the claims made by the informant cannot be verified, and there is no corroborating evidence of fraud per se, the Tribunal has not placed any weight on this part of the information. To the extent to which the claims by the informant speak to the relationship requirements the applicant is required to meet, the Tribunal places no persuasive weight on the information. It has done this because the applicant is not privy to the informant’s identity, and therefore not properly able to respond.

26. The fifth certificate was received by the Tribunal on 23 May 2019. The certificate is a section 376 certificate. The Tribunal’s finding is that it is not a valid certificate, because although it is clearly signed, dated, and names the delegate, the certificate is not fit for purpose. The Tribunal has come to this view because the reason given for the application of the certificate is the assertion by the issuer that the information has been given ‘in confidence’. Nowhere in that document (folio 66) does the issuer notate, or the provider, indicate or seek to make known, that the information has been provided ‘in-confidence’. Accordingly, the certificate is not valid. Further, as the Tribunal has already discussed the matters contained in the information found at folio 66, the applicant has already provided information which is not inconsistent. Accordingly, the Tribunal places no adverse weight on any of the information.

    Consideration of the evidence and arguments

27. In a submission received on 10 October 2012 from the applicant’s migration agent (as specified in the Applicant’s Form 40SP found at folios 1-38 of the Immigration Department’s file CLF2012/124945) the applicant’s agent advised the sponsor claims the applicant had moved-out of their home on 19 August 2012 and that their relationship had broken-down at that time. The applicant’s agent advised the sponsor was withdrawing her sponsorship of the applicant’s partner visa. The sponsor has subsequently claimed his relationship with his sponsor broke-down sometime in September (not August as per his agent’s submission of 10 October 2012), and stated he stopped living with his sponsor on 16 August 2012.

    Whether the parties were in a spouse relationship

28. Clauses 820.211(2)(a) requires that at the time the visa application was made the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. The applicant claims that at the time of the visa application, he was the spouse of the sponsor, who is an Australian citizen.

29. In this matter, the applicant applied for the visa on 20 June 2012, based on his claimed married relationship with his sponsor (and wife) Australian-born citizen Clementine Lindsay, who he married seven (7) weeks earlier on 1 May 2012.

30. The applicant and his wife claim they first met online in an online dating site, after which the applicant claims he travelled to Australia to progress the relationship, arriving into the country at the airport (as a holder of a visitor visa) where he first met Ms Lindsay in-person on 20 March 2012.

31. The applicant has provided evidence of his marriage to his sponsor in the form of the Marriage Certificate, a copy of which can be found at folio 57 of the Immigration Department’s file CLF2012/124945.Based on this evidence, the Tribunal is satisfied 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).

32. ‘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 as to these matters, regard must be had to all the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in r.1.15A(3).

33. The Tribunal made clear to the applicant during the public hearing held 22 October that he could outline for the Tribunal any considerations in respect to the 1.15A(3) matters (present at any time during his relationship with his sponsor), and worked step-by-step, through each (including and having had regard to all the evidence given and on the Department of Immigration and Tribunal files earlier). As the relationship between the applicant and his sponsor has ceased, the Tribunal will use the past-tense ‘had’ to indicate consideration of those circumstances/matters present throughout the relationship (this does not however, mean consideration of events that occurred after the relationship’s break-down has been excluded, rather, where any evidence logically speaks to the relationship as claimed, and occurred latterly, it is considered):

    (a)  the financial aspects of the relationship, including:

    (i)  any joint ownership of real estate or other major assets; and  

34. The applicant told the Tribunal he had no major asset or real estate together.

35. The applicant told the Tribunal he and his sponsor were starting to share expenses together. The Tribunal asked what the applicant meant by “starting to share”. The applicant told the Tribunal that they hoped he would get permission to work and had anticipated his income would cover expenses. At that time the applicant said he did not have a permit to work, and said they were dependent upon the sponsor’s Centrelink payments.

1. The Tribunal accepts the applicant’s own evidence in respect to the above, and acknowledges the applicant and his sponsor had no major assets and no real estate together. Accordingly, the Tribunal finds these circumstances do not support the applicant’s claim he was in a married relationship as defined under the Act. 

   (ii)  any joint liabilities; and

2. The applicant told the Tribunal he and his sponsor had no money owed.

3. The applicant told the Tribunal the sponsor had told him she had a piece of land in America, although he knew no more details, and he’d envisaged helping pay the loan off. When asked how much the sponsor owed on the property, the applicant told the Tribunal around $10,000 but stated his sponsor had been paying in instalments. The applicant told the Tribunal he knew no other details about the land except recalling what his sponsor (wife) had told him, and that was that the property was ‘land’ and she had purchased it via the internet.

4. The Tribunal finds the applicant’s evidence he and his sponsor owed no money (and had no joint liabilities) as insightful, because although the sponsor had clearly acquired some debt prior to their union, according to the applicant himself, it was not considered in any way shared, even though they had married one another. It is also insightful that the sponsor had not shared key details of her financial arrangements in this regard, and that the applicant had not enquired further given the liability it conferred (at least upon the sponsor). The Tribunal finds these circumstances do not support the applicant’s claim he was in a married relationship as defined under the Act.

   (iii)  the extent of any pooling of financial resources, especially in relation to major financial commitments; and

5. When asked about any pooling, especially in relation to major financial commitments, the applicant told the Tribunal the home the sponsor occupied was housing commission and attracted rent in the order of “around $100 per week.”. The applicant told the Tribunal the rent for his sponsor’s home was deducted automatically from her Centrelink payments.

6. The circumstances outlined by the applicant in regards to this circumstance do not support the applicant’s claim he was in a married relationship because evidently no pooling occurred, except to the extent the applicant’s may have been seen to rely upon the sponsor’s meeting the nominal rent which was deducted from her welfare payment. In any case, no details of actual pooling (much less in relation to major financial commitments), has been evidenced.

   (iv)  whether one person in the relationship owes any legal obligation in respect of the other; and

7. The applicant told the Tribunal neither party owed a legal obligation to the other outside marriage.

   As the applicant and his sponsor had married, the Tribunal accepts they evidently owed a legal obligation to one another, though outside this, the evidence is that no other obligation existed. In such circumstances, the Tribunal finds that the marriage itself does support the claim the applicant was in a married relationship as defined under the Act.

   (v)  the basis of any sharing of day-to-day household expenses; and

8. The applicant told the Tribunal he covered some expenses, for items like some food, drinks and toys for the child (his sponsor’s child from a previous relationship). The applicant told the Tribunal he covered the cost of bus and train tickets on occasions when he and the sponsor travelled as they did not have a car.

9. The Tribunal accepts that on occasion the applicant paid shared in some day-to-day household expenses, albeit the extent of the sharing appears limited based on the applicant’s own evidence and the seemingly ad-hoc nature of the claimed sharing. In these circumstances the Tribunal finds the extent to which there is evidence of any sharing of day-to-day household expenses does not support the applicant’s claim he was in a married relationship as defined under the Act.

   (b)  the nature of the household, including:

   (i)  any joint responsibility for the care and support of children; and

10. When asked by the Tribunal whether he had any joint responsibility for the sponsor’s child, the applicant replied “No.”

11. The Tribunal accepts the applicant’s evidence in this regard, and logically finds that although the sponsor’s child is not his biological child, the evidence that he has no joint responsibility whatsoever (despite their living together and being lawfully married) does not support the applicant’s claim he is in a married relationship as defined under the Act.

    (ii)  the living arrangements of the persons; and

12. The applicant told the Tribunal he and his sponsor lived together for around five (5) or six (6) months since he arrived in Australia. The applicant told the Tribunal he lived in a house with his sponsor’s child, and mother. The applicant told the Tribunal he shared a room with his sponsor as her husband.

13. The Tribunal accepts the applicant and his sponsor lived together for at least five months, after which they separated because of claim family violence. In such circumstances the Tribunal finds the living arrangements (when they did exist) support the claim by the applicant that he was in a married relationship as defined under the Act.

    (iii)  any sharing of the responsibility for housework; and

14. The applicant told the Tribunal he and his sponsor shared the cleaning duties in the house, stating his sponsor’s mother didn’t help.

15. Given the limited evidence provided in support of the consideration by the applicant, the Tribunal accepts at face value the applicant’s claim he shared in responsibility for the housework. Accordingly, the Tribunal finds the circumstances, limited as they are by evidence, provide only limited support of the applicant claim he is in a married relationship as defined under the Act.

    (c)  the social aspects of the relationship, including:

16. (i)  whether the persons represent themselves to other people as being married to each other; and

17. The applicant said that when he came here [Australia] he had no friends or relatives or anything. The applicant said that his sponsor did not have a big family and he only met her aunty a couple of times in the city as she lived far away. The applicant told the Tribunal that nobody from his family met his wife, but that she spoke to his mother and father (and two brothers) over the internet, although his parents don’t speak English, so relied on one of his brothers to translate.

18. The Tribunal finds the applicant’s evidence in this regard to be vague and so broad so as to be difficult to verify, particularly where the applicant has not provided corroborating evidence which support his claims. It is apparent the sponsor’s mother, and a small number of other friends, knew of the parties relationship, though outside this small number, it is not clear to the Tribunal that the applicant and sponsor actually represented themselves to other people as being married to each other as claimed. It follows, that the Tribunal finds these circumstances do not support the applicant’s claim he is in a married relationship as defined under the Act.  

    (ii)  the opinion of the persons' friends and acquaintances about the nature of the relationship; and

19. The applicant told the Tribunal he and the sponsor had a neighbour who visited them twice and they visited him once. The applicant also said he knew an “Egyptian guy”, Amjad, who tried to help with their relationship issues.

20. The applicant has provided only vague and minimal evidence in respect to the opinion of the parties’ friends and acquaintances about the nature of their relationship. It follows that other than the scant oral evidence outlined above, the extent of any opinion of friends and acquaintances (as provided by the applicant in evidence) does not support the applicant’s claim he is in a married relationship as defined under the Act.

    (iii)  any basis on which the persons plan and undertake joint social activities; and

21. The applicant told the Tribunal they were planning, once their financial situation improved, to visit his family in person, or go to America, as she had told him she’d been to America before, or perhaps travel interstate.

22. While the Tribunal accepted this evidence at face value, as no planning ever eventuated, and given the relationship ended some 5 or so months after it began, the Tribunal is unable to conclude that these circumstances support the applicant’s claim he was in  married relationship as defined under the Act.

    (d)  the nature of the persons' commitment to each other, including:

23. The applicant told the Tribunal he was a good husband, treated the sponsor well, loved each other, and said he felt sorry for her for the condition she is going through, and said he was trying to help her. The applicant also said he’d hoped to earn more money as they had little income and this was a point of friction, particularly with his sponsor’s mother.

24. The Tribunal finds the oral evidence of the applicant is at odds with many aspects of the applicant’s written accounts which detail a relationship which was at times conflicted and combative, including involvement with the police and claims by each of them against the other, including an Intervention Order taken out against the applicant by his sponsor, and later legal action by the applicant against his sponsor. According to the applicant’s own written evidence, including in his statement provided 9 April 2014, the dysfunction in the family (including his sponsor and his mother’s behaviour) affected his relationship with his sponsor. The applicant has claimed his sponsor wanted a child, but he did not (at that time) and that the pressure from the sponsor placed “enormous stress” on him. The Tribunal finds the intermittent, and perhaps even transient nature, of their commitment to each other does not support the applicant’s claim he was in a married relationship as defined under the Act.

    (i)  the duration of the relationship; and

25. The applicant said he first met the sponsor on the internet in 2011, and then in person when he arrived in Australia. The applicant arrived in Australia on 20 March 2012 and married the sponsor on 1 May 2012. The relationship ceased in mid-August/latest - in September, some four-to-five months later. In total the relationship, from arrival in Australia until end, was around five months in duration.

26. The Tribunal accepts the applicant’s evidence that his relationship with his sponsor ended after some five (5) months, and notes the applicant claims he suffered family violence perpetrated by his sponsor. Because of the nature of the later claim, the Tribunal is unable to conclude that the short duration of the claimed relationship supports, or does not, the applicant’s claim he was in a married relationship as defined under the Act.

    (ii)  the length of time during which the persons have lived together; and

27. The applicant claims to have lived with his sponsor from the time he arrived in Australia until the relationship ceased some five months later.

28. Further to the above, the Tribunal accepts the parties lived together for the short period claimed, though given the family violence claim, the Tribunal finds that to the extent that they did live together for the period outlined, does support the applicant’s claim he was in  married relationship as defined under the Act.

    (iii)  the degree of companionship and emotional support that the persons draw from each other; and

29. The applicant told the Tribunal he supported his sponsor a lot emotionally, as she would cry a lot about the death of her son, and other problems. The applicant said he supported her by cleaning and doing things around the house, and trying to give her emotional support, as her mother used to treat them both very badly. The Tribunal enquired how the sponsor’s child died, the applicant said the child passed away at the hospital after delivery. The Tribunal asked whether any event or circumstances contributed to the child’s death. The applicant said he didn’t think so as he’d seen some tubes around the child in a photograph taken at the hospital. The Tribunal asked if the applicant knew who the child’s father was, the applicant said he knew nothing about him as his sponsor said bad things about him because he left her and deserted her. The applicant said he was unaware that the death of the sponsor’s child had anything to do with an attack against his sponsor on a bus by an attacker. The applicant then told the Tribunal that while he was not here [in Australia] when the incident took place, a lady had attacked his sponsor at that time, but he had not realised that attack had an impact on the pregnancy and eventual death of the newborn child. The applicant maintained he did not know the two incidents were related but said that he provided the applicant with emotional support. The applicant’s evidence is somewhat inconsistent with the applicant’s previous evidence submitted in respect to his application for a waiver of the condition 8503, which was granted on 18 June 2012 by the Department of Immigration delegate. This waiver was, in part, based on the support the applicant would provide his sponsor because of the attack and subsequent death of her child.

30. Given all the above, the Tribunal finds that the degree of companionship and emotional support was minimal, and the companionship and emotional support that did exist was intermittent and infrequent (respectively). Considered in totality, the Tribunal finds these circumstances do not support the applicant’s claim he was in married relationship as defined under the Act.

    (iv)  whether the persons see the relationship as a long-term one.

31. The applicant told the Tribunal he hoped they could live together and have children, but says that unfortunately the behaviour destroyed him emotionally, and he feels sorry for himself, and says what he was going through - with the threats and the knives - was not easy, and felt as though he faced great risk and his life was not safe, in addition to fearing for his emotional well-being. The applicant said he spoke to his doctor, psychologist, who told him to use his breathing to help calm himself down.

32. The applicant and sponsor had submitted various statements, including in support of his initial visa application, and subsequently from the applicant alone (and including among other documents, a letter from psychologist Tymur Hussein) which speak to whether the parties viewed the relationship as a long-term one. However, the Tribunal finds that the extent to which the persons saw their relationship as a long-term one is not a circumstance which, in this matter, supports the applicant’s claim he was in a married relationship as defined under the Act because the relationship, as short as it was, was categorised by intermittent emotional support, infrequent companionship, and generalised instability.

    Information put formally under s.359AA of the Act

33. The Tribunal put information formally to the applicant in respect to an email provided to the Department of Immigration on 11 March 2013 from his sponsor (found at folios 125-126 of Department file CLF2012/124945). The Tribunal provided the applicant with the details of the email, including the sponsor’s contention the applicant did not behave like a married man; was focused on obtaining a visa after marriage; and, failed to conduct a honeymoon or reception. The sponsor also claimed she was physically abused by the applicant, and later states the applicant made a complaint of family violence against her based on false statements and done by him in retaliation for her reporting him to the police (and making him feel like a criminal). The applicant chose to comment on or respond the information at the hearing. The applicant said it was the sponsor who insisted he arrange for an agent to assist with the processing of his visa. The applicant added that they had a social worker who used to see the sponsor once a week, and the applicant stated she never complained to him to the social worker. The applicant claimed the sponsor had asked him to come home but added he could not do this because of the intervention order the police took out against him. The applicant said that proof he was a good husband was the fact the sponsor revoked the intervention order made against him. The intervention order he lodged against his sponsor, was the truth according to the applicant, as he claims she held a knife and swore at him.

    Resumed public hearing dated 22 October 2019 (and continued 31 July 2020)

34. On 31 July 2020 the Tribunal resumed the adjourned hearing of 22 October 2019 via telephone with the applicant. The Tribunal adjourned the 22 October 2019 hearing because the interpreter could not continue due to other commitments. While the Tribunal had conducted almost all of its hearing and relevant consideration at hat time, it was nonetheless important to allow the applicant to return to provide him with a further opportunity to address any of the matters put to him formally, and to allow him the opportunity to provide any further evidence whatsoever, prior to the Tribunal making a decision. 

35. Because of the SARS-CoV-2 pandemic the Tribunal conducted the continued review via telephone. The Migration Act 1958 gives the Tribunal the authority to conduct matters in this way: Section 366(1). Further, consistent with section 365(3) of the Migration Act 1958 the Tribunal conducted the hearing without opening it to the public as it is satisfied that during the SARS-CoV-2 pandemic it is impracticable to take oral evidence in public. Accordingly, the Tribunal directed that all the evidence from the applicant at the resumed hearing be taken in private.

36. As the translator assisting the applicant could not continue due to other commitments, the Tribunal adjourned the review’s gearing and resumed it on 31 July 2020. At that resumed hearing the applicant was provided with a further opportunity to provide any other evidence or argument. The applicant made a submission prior to the hearing which contained various emails and documents. These documents speak to the claimed relationship and have been taken into consideration. They also include emails between himself and his agent.

37. In addition to the above emails, certain documents (including the emails) were provided post-hearing on 31 July 2020. The extent to which the information in each document speaks to, and therefore may support the applicant’s claim(s), were taken into consideration.

    FINDINGS

38. The Tribunal has considered all the evidence, separately and together, and each of the specific matters contained in r.1.15A(3)(d), however, there is no persuasive evidence that the applicants are committed to each other as a married couple. The probative and reliable evidence of their commitment to each other, such as it is, does not sufficiently support that they have the sort of relationship contemplated in s.5F(2)(b) of the Act.

39. Specifically, the Tribunal is not satisfied by the applicant that at the ‘time of application’ the applicant had a mutual commitment to a shared life as husband and wife to the exclusion of all others.

40. Given the above, it follows that the applicant does not meet the requirements of s.5F(2)(b) for a married relationship.

41. Having considered all the evidence before it, the Tribunal has not been satisfied by the applicant that he is the spouse of the sponsor for the purposes of s.5F(2).

    DECISION

42. For the above reasons, the Tribunal finds that at the time of application the applicant and his sponsor were not in a married relationship within the meaning of s.5F(2) of the Act.

43. It follows the applicant does not meet clause 820.211(2)(a).

44. As the applicant has failed to satisfy a requisite criterion necessary for the grant of the temporary partner visa, the Tribunal need not further consider the other matters.

45. For the reasons stated, the applicant does not satisfy the criteria for the grant of the visa.

*  *  *  *  *