Anwar Rahana (Migration)

[2022] AATA 4239

Anwar Rahana (Migration) [2022] AATA 4239 (29 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sarmad Anwar Rahana

REPRESENTATIVE:  Ms Karyn Anderson (MARN: 9685990)

CASE NUMBER:  1828398

HOME AFFAIRS REFERENCE(S):          BCC2014/1856004 CLF2018/355267

MEMBER:Stephen Conwell

DATE:29 September 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

·cl 801.221(2) of Schedule 2 to the Regulations

Statement made on 29 September 2022 at 10:45am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) –genuine spousal relationship –– parties have established a joint household as a married couple – birth of a child to the relationship – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, r 1.15, Schedule 2, cl 801.221

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 Home Affairs on 21 September 2018 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 July 2014 on the basis of his relationship with his sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 applicant did not satisfy cl.801.221.

4. The delegate notes in the decision record that the applicant was granted a Partner Temporary (Class UK) (Subclass 820) visa on 18 February 2016.

5. The applicant provided a copy of the delegate’s decision to the Tribunal for the purposes of the review.

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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 before the Tribunal is whether the applicant continues to be, at the time of decision, the spouse or de facto partner of the sponsor.

   Background

9. The applicant was born on 20 October 1980 in Baghdad, Iraq. He relocated to Sweden as a Refugee in 2002 and was granted Swedish citizenship in 2005. He is one of four siblings, and  with exception of one, his other siblings and his parents are Australian permanent residents or citizens. The applicant is a qualified and experienced hairdresser, with an established career as such in Sweden.

10. The couple met when in late 2012, the applicant travelled to Australia from Sweden to visit his family in Melbourne and to attend his brother’s wedding.  The sponsor was a guest at the wedding.  The applicant returned to Sweden in late January 2013, but the couple remained in touch.

11. The applicant returned to Australia on 1 October 2013 to visit his family in Melbourne and to spend time with the sponsor.  They married on 2 November 2013 in Melbourne.

12. As an indication of her commitment to the union, the sponsor converted from Islam to Christianity so that she may share the same religious beliefs as the applicant.

13. On 9 August 2018, the Department telephoned each party separately to conduct simultaneous interviews in relation to their claimed spousal relationship.  The Department found that the parties provided inconsistent and at times conflicting information during these telephone interviews.  The inconsistent information pertained to when they first met, their date of marriage, the ages of the sponsor’s children and the grades that they were in at school. There were also discrepancies regarding the composition of the household and whose name(s) appeared on the lease. The parties were invited by the Department to comment on these inconsistencies however their written responses were found not to be satisfactory and the applicant’s 801 visa application was refused.

    Whether the parties are in a spouse or de facto relationship

14. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen who was  identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

15. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a) - (d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and sponsor’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

16. In assessing the claimed relationship, the Tribunal has regard to all the documents contained in the Department and Tribunal files including but not limited to, the decision record,  a Marriage Certificate, photographs, third party statements in support of the relationship, financial information, communication records, written submissions by the representative, as well as  the statutory declarations made by the sponsor and the applicant.

    Are the parties validly married?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties provided a copy of a Queensland Marriage Certificate, certifying that they married in Melbourne on 2 November 2013. 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 spouse relationship met?

    Financial aspects of the relationship

18. Both the applicant and sponsor have been long-term unemployed and remain so. The sponsor, Ms Noor Jamel  receives rental assistance, Newstart allowance and family tax benefit payments from Centrelink as she is the primary carer of her three minor children. She is also receiving Carers benefits as she is caring for an elderly man. The total Centrelink benefits that the sponsor and her children receive is about $1,900.00 per fortnight. The applicant is financially dependent upon the sponsor for financial support in Australia, although his family sometimes provide some financial assistance where possible.  The Tribunal accepts the evidence that the applicant’s limited, but improving, English proficiency has hindered his ability to find regular work in his profession as a hairdresser.

19. The couple share a joint bank account with Commonwealth Bank (CBA) which was opened on 17 November 2017 and they also maintain individual savings accounts. The sponsor’s several Centrelink benefits are paid into the CBA joint account and the household’s living expenses are drawn from this account. The applicant’s Westpac Choice account is the account into which he  deposited his life savings from Sweden and money he earns in his hobby (which he shares with his brother, Mr Steve Adam) of buying, fixing and improving, and then selling, cars. The sponsor has a Westpac Choice account and a Bank of Melbourne account that she opened before meeting the applicant; she maintains these accounts for saving purposes. Despite separate accounts, each party views their savings as joint and their finances as combined. They have access to each other’s accounts when needed.

20. The evidence includes a copy of a joint tenancy agreement commencing on 22 July 2019 which appears to have continued beyond the annual tenancy, as it is the parties’ current address in Roxburgh Park, Melbourne. The sponsor, applicant and his brother, Mr Adam are listed as tenants. 

21. There is no information before the Tribunal to indicate whether one party in the relationship owes any legal obligation in respect of the other. In light of the other evidence provided, the Tribunal gives no weight to this consideration. The Tribunal accepts that the parties have had and continue to have joint liabilities as a married couple within the same household.

22. The Tribunal is satisfied on the evidence provided that the parties have pooled their financial resources and share day-to-day household expenses commensurate with being in a genuine spousal relationship. 

    Nature of the household

23. The Tribunal accepts the evidence that in their household, the sponsor is responsible for all of the cooking and household chores, with the applicant’s assistance. As the mother of three minor children, the sponsor is also primarily responsible for them, however there are handwritten statements from two of the children which speak of the applicant in positive terms of his contribution to the household and indicate their acceptance of him into their lives.

24. As noted above, the parties and the sponsor’s children appear in continue to live in the same address as recorded in the 2019 tenancy agreement provided to the Tribunal . The applicant’s brother, Mr Steve Adam is listed as a co-tenant however he doesn’t live there, although he spends time there, assisting the applicant in working on cars; he also sleeps over on occasion.

25. In her statement of 9 August 2019 the sponsor describes her routine and responsibilities regarding the household and care of her three children. She describes how the applicant assists and supports her in these duties. She writes,

    My husband has a good relationship with my children and he is able to help in aspects of their care …he adores them and I know that they adore him as well. Their biological father sees them irregularly so my husband is the primary father that they have …they see him as their father.

26. The Tribunal is satisfied that the parties have established a joint household as a married couple where they share the responsibility for the care and support of the sponsor’s children and share the housework.

    Social aspects of the relationship

27. In her 2019 statement the sponsor states that she has no family in Australia, as they are all in Iraq.  She has had a limited social life, raising three children. Since marrying the applicant she has been embraced by his family in Australia. Their social life centres around the sponsor’s children and the applicant’s family.

28. There are four Form 888 statutory declarations – two from the applicant’s siblings; from a cousin and sister-in-law of the applicant and one from a friend of the applicant from Iraq. All were completed in July 2022 and speak in general terms regarding the genuineness of the relationship.  Given the generality of the comments and the fact that the deponents are all either related to, or a friend of, the applicant, the Tribunal gives these statements little positive weight.  

29. Photographs were provided showing the parties at home, outdoors and at social events. The photographs show the parties as a couple, sometimes in the company of two of the sponsor’s children or  with family members and friends. The photos appear to be genuine and there is no reason for the Tribunal to think otherwise.

30. The Tribunal is satisfied on the evidence provided that the parties represent themselves to other people as a married couple; that they have been married for almost nine years and are recognised and related to by friends and acquaintances as well as family members as a married couple; that they plan and undertake social activities jointly, as a married couple. 

    Nature of persons' commitment to each other

31. The Tribunal accepts the representative’s submission that  since marrying in 2013, the applicant and sponsor “have developed and maintained the strength of their relationship and supported each other through major life events and endured the test of time and distance. The most compelling evidence of Sarmad and Noor’s commitment to one another is the formalising of their relationship through their marriage and their decision to have children together”.

32. The Tribunal notes that these challenges have included the sponsor suffering a miscarriage in January 2019, before she gave birth to a son, born almost exactly a year later, on 20 January 2020 in Melbourne.  A copy of his birth certificate is included in the evidence. The Tribunal places significant weight on the birth of a child to the relationship. The child is an Australian citizen by birth; having  both parents in a child’s life is important as they each play distinct and crucial roles in the psychological and emotional development of the child.

33. The Tribunal also appreciates the gravity of the sponsor’s decision to relinquish her Muslim faith and be baptised as a Christian so that she is able to share the applicant’s Christian faith and beliefs.

34. In her 2019 statement the sponsor states,

    Having been through a failed marriage, I understand the importance of open communication and being understanding and respectful towards one another …I feel that my relationship with [the applicant] now is completely different to the relationship I had with my previous husband, and I know that we have a solid foundation for a long-lasting partnership.

35. The Tribunal notes the Department’s concerns arising from the inconsistencies in the parties’ statements made in their simultaneous telephone interviews on 9 August 2018. However the Tribunal is satisfied by the applicant’s explanation regarding these interviews.  Furthermore, having regard to the totality of the circumstances and the evidence provided, the Tribunal is satisfied that the parties have lived together in a genuine relationship since the time of their marriage and prior to the visa application; that they provide each other with a significant level of companionship and emotional support; and that they see the relationship as long-term.

36. The Tribunal therefore finds, against s.5F(2)(b)-(d), that the parties do have a mutual commitment to shared life to the exclusion of others; that they are in a genuine and continuing relationship; and that they do live together or not separately and apart on a permanent basis.

37. Given these findings the Tribunal is satisfied that the requirements of s.5F(2) are met at the time of this decision. Therefore the applicant meets cl.801.221(2)(c).

38. The applicant continues to be sponsored for the grant of the Subclass 820 (Partner) visa by the sponsoring partner; the applicant is the spouse of the sponsoring partner; and at least two years have passed since the application was made. Therefore the applicant meets cl.801.221(2)(b) and cl.801.221(2)(d).

39. 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 801 visa.

    decision

40. The Tribunal remits the application for a Partner (Residence) (Class BS) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 801 (Partner) visa:

    ·cl.801.221(2) of Schedule 2 to the Regulations

    Stephen Conwell
    Member

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).