Althwabteh (Migration)

[2017] AATA 2115

Althwabteh (Migration) [2017] AATA 2115 (26 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rakan Hikmat Sayel Althwabteh

CASE NUMBER:  1620881

DIBP REFERENCE(S): 1700527BCC2015/ BCC2015/1114212

MEMBER:A B Baker

DATE:26 October 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 26 October 2017 at 12:35pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner (Temporary)) – Genuine, continuing and exclusive spousal relationship – Relationship ceased – Sponsor pregnant by another man – Divorce proceedings commenced

LEGISLATION

Migration Act 1958, ss 5F, 65

Migration Regulations 1994, Schedule 2 cls 820.211, 820.221, rr 1.09A, 1.15

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 24 November 2016 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 April 2015 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner (Temporary)). The criteria for the grant of this visa are set out in Part 820 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.820.211 because there was insufficient evidence to satisfy the delegate that the review applicant was in a genuine, continuing and exclusive spousal relationship as envisaged by the Migration Act.

4.    The Tribunal wrote to the applicant on 13 September 2017 inviting him to attend a hearing on 26 October 2017. The applicant and his adviser sent the Tribunal a series of emails indicating that the adviser had informed the applicant of the hearing. The applicant acknowledged that he was aware of the date of the hearing as he attempted to get an extension on his bridging visa as he was overseas at the time.

5.    The applicant sent the Tribunal an email on 22 September 2017 informing it that he was overseas and seeking an extension of his Bridging Visa which was due to expire on 1 October 2017. The Tribunal informed him that we could not assist with the extension of his bridging visa.

6.    On Monday 16 October 2017 the applicant again emailed the Tribunal informing it that he had applied for a visitor visa to Australia to enable him to attend the Tribunal on 26 October 2017 however it was refused.

7.    On 24 October 2017 the applicant’s nominated representative emailed the Tribunal seeking a postponement of the hearing for a period of one month to enable the applicant to apply for another visa to travel to Australia or arrange to attend the hearing by telephone.

8.    The Tribunal wrote to the applicant on 24 October refusing the request for a postponement, noting that there was no certainty that a new visa would be granted. The Tribunal informed the applicant that the hearing would proceed as scheduled and that it would take his evidence by telephone.

9.    On 25 October 2017 the applicant’s representative contacted the Tribunal to inform it that he had been unable to get in touch with the applicant and had no evidence to provide to the Tribunal. The applicant’s representative stated that he believed the hearing would be a waste of time and asked whether there was anything further the Tribunal could do. The Tribunal informed the applicant’s representative that the hearing would continue as schedule and that non-appearance could result in a dismissal of the matter. The applicant’s representative was strongly encouraged to continue his efforts to contact the applicant. The applicant’s representative then emailed the Tribunal later that day to inform it that he had sent the applicant a request via email and WhatsApp to provide himself with a telephone number for himself and the sponsor so that the hearing could be conducted by telephone.

1. The applicant appeared before the Tribunal via telephone link to Jordan on 26 October 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

2. The applicant was represented in relation to the review by his registered migration agent.

3. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

BACKGROUND

1. The parties provided the Tribunal with a copy of the delegate’s decision along with their application for review.

2. The applicant is a citizen of Jordan born on 28 February 1988 (29 years old).

3. The sponsor is an Australian permanent resident born on 19 September 1983 (34 years old), in the Ukraine. She first arrived in Australia on 20 February 2012. She declared a previous marriage from 27 September 2007 to 30 April 2014. There are no children from this marriage.

4. The parties claim to have met on 3 July 2014 at the Gold Coast and were married in Surfers Paradise on 12 January 2015.

5. The parties lodged the application subject to this review on 14 April 2015. On 23 August 2016 the department wrote to the applicant putting to him adverse information that had been given to the Department. That information was that he and the sponsor were no longer in a spousal relationship. The applicant did not respond to that request for information. On 24 November 2016 the department refused the application. The applicant lodged an appeal of that decision with the AAT on 7 December 2016.

6. On 26 October 2017, prior to the scheduled hearing, the applicant sent the Tribunal the following documents:

   a.Personal statements

   b.A copy of his marriage certificate

   c.A copy of a utility bill in the sponsor’s name dated 19 May 2015

   d.Some photographs of unnamed people

   e.Screen shots of the sponsor’s facebook page showing photographs and conversations between her and others (but not the applicant)

7. In his personal statements the applicant claims that after he returned from Jordan in August 2015 he noticed a change in the relationship with the sponsor. He claims that by the end of October she was spending more time away from their home and ignoring his calls. He claims that she moved out of the house for some time and he discovered that she was seeing someone else. The applicant claims that when he contacted her she demanded money to keep his visa and he refused.

8. The applicant claims that he followed her on Facebook and discovered she was seeing a different man. He claims that he tried to convince her to return to the marriage as he was still in love with her and wanted to stay with her for ever. He claims that she just wanted to get him out of the country.

9. The applicant claims that two weeks ago the sponsor emailed him asking for his address so that she can start divorce proceedings because she is 24 weeks pregnant.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Migration Act.

2. The Tribunal found the applicant’s evidence to be forthright and honest. The Tribunal accepts his claims and affirms the decision under review.

Whether the parties are in a spouse or de facto relationship

1. Clauses 820.21(2)(a)] and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian permanent resident.

2. ‘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 of 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), which is extracted in the attachment to this decision.

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. A copy of the parties’ marriage certificate on the Tribunal’s files at folio 63. On the evidence, the Tribunal is satisfied that 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?

1. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The parties provided the Tribunal a copy of their marriage certificate at folio 63 of the Tribunal file. On the evidence, the Tribunal is satisfied that 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).

2. Prior to the commencement of the hearing the applicant and his adviser told the Tribunal that they did not want the Tribunal to contact the sponsor and the applicant wanted nothing to do with her. The Tribunal indicated that it would not contact the sponsor at the applicant’s request.

3. At the Tribunal hearing the applicant gave evidence that he and the sponsor have not lived together since around August 2016. He told the Tribunal that he did not inform the department of immigration because he did not think that he had to.

4. The visa applicant told the Tribunal that he had been overseas since June 2017 and recently had his visitor visa to return to Australia refused. He said that the sponsor had recently contacted him because she wanted to begin proceedings to divorce him. The applicant told the Tribunal that the sponsor was 24 weeks pregnant to another man.

5. The Tribunal reminded the applicant of the criteria for a spouse visa which included that he and the sponsor be in a genuine, ongoing and exclusive spousal relationship both at the time of application and at the time of the decision. The Tribunal put to the applicant that he had just given evidence that none of these criteria could be met as the sponsor had left the marriage, was seeking a divorce and was pregnant to another man. The Tribunal put to him that his evidence was that they had not lived together since August 2016. The Tribunal put to the applicant that on the basis of the evidence he gave at the hearing, the Tribunal would be agreeing with the department in refusing his visa and affirming the decision. The Tribunal asked if he understood that. The applicant indicated that he understood. The Tribunal asked the applicant if he thought that there might be a basis to reconcile with the sponsor and he said that there could be no reconciliation.

6. The Tribunal asked the applicant on what basis he felt that he should therefore be granted a visa. The applicant told the Tribunal that he did everything right and it was not his fault that the marriage ended. The Tribunal asked the applicant if he felt that he should therefore still be entitled to the grant of a visa and he said that he was. The Tribunal again put to him the criteria for the grant of the visa and that he had just given evidence that those criteria could not be met.

7. The applicant’s representative told the Tribunal that he had tried to explain the facts to the applicant and had told him that he had no prospect of success at the Tribunal. He nevertheless indicated that he wanted an opportunity to put his case, which the Tribunal has heard.

8. There is no evidence before the Tribunal to support a finding that the parties have joint ownership of assets; joint liabilities; or pool their financial resources; they do not appear to have legal obligations owed to the other party or share day-to-day household expenses.

9. There is no evidence before the Tribunal that the parties have any joint responsibility for care and support of children; share or have shared living arrangements or housework.

10. There is no evidence before the Tribunal that the parties represent themselves to other people as being in a de facto relationship with each other nor have their shared with the Tribunal the opinion of friends and acquaintances about the nature of the relationship. There is no evidence that they plan and undertake joint social activities.

11. There is no reliable evidence before the Tribunal that the parties have lived together at any time. The sponsor has put the applicant on notice that she wishes to begin divorce proceedings as she is 24 weeks pregnant to another man. There is no evidence before the Tribunal that there is any basis upon which the relationship between them can be seen as genuine and ongoing.

12. The Tribunal has no evidence before it to suggest that the parties are related by family.

13. Having considered the evidence before it the Tribunal is not satisfied that the parties have a mutual commitment to a shared life together to the exclusion of all others. The Tribunal is not satisfied that their relationship is genuine and continuing. The Tribunal is not satisfied that they do not live separately and apart on a permanent basis.

14. Given these findings the Tribunal is not satisfied that at the time the visa application was made or the time of this decision the parties were in a spousal relationship as envisaged by the Migration Act.

15. Therefore the applicant does not meet cl.820.211 or cl.820.221.

16. There is no evidence before the Tribunal that the applicant meets any of the alternative criteria in c.820.211.

CONCLUSION

1. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

DECISION

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

A B Baker
Senior Member

ATTACHMENT - Extract from Migration Regulations 1994

1.09A     De facto partner and de facto relationship

1. For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

   Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
   Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
   Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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).

1. 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 in a de facto relationship with 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.

2. 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).