Baradi (Migration)

[2021] AATA 2574

Baradi (Migration) [2021] AATA 2574 (27 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Catherine Baradi

VISA APPLICANT:  Mr Ali Al Sahely

CASE NUMBER:  2004213

DIBP REFERENCE(S):  BCC2018/5548085 BCC2019/6324132

MEMBER:Meena Sripathy

DATE:27 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl.309.211 of Schedule 2 to the Regulations

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 27 May 2021 at 12:16pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – credible witnesses – previous marriage – identity theft – financial aspects – household arrangements – six-months pregnant – social aspects – commitment to each other – plans for the future – delegate’s decision at primary stage – priority processing of application on remittal recommended – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

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 Immigration on 3 March 2020 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 22 November 2019 on the basis of his relationship with his sponsor, Ms Catherine Baradi, 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).

3. By way of background, the visa applicant applied for a Prospective Marriage (Temporary) (Class TO) visa on 10 December 2018, sponsored by the review applicant.  That application was refused by a delegate of the Minister on 29 July 2019 and the review applicant applied for review of the decision to the Administrative Appeals Tribunal (AAT). On 22 November 2019 the AAT (differently constituted) remitted the application to the Department with a direction that the application be taken to be applications for Partner (Migrant)(Class BC) and Partner (Provisional) (Class UF) visas made on the date the visa application was remitted to the Department, on the basis that the parties had provided evidence that they married in Germany on 16 September 2019.

4. The effect of the remittal by the AAT was that the original application made by the visa applicant was to be assessed against the requirements for a Partner (Provisional) visa as from the date of the remittal.  The delegate was to consider whether the visa applicant and sponsor were in a genuine spouse relationship at 22 November 2019 and continuing to the date of the delegate’s decision.  However, on 3 March 2020, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 and cl.309.221 because the delegate was not satisfied the applicant and sponsor have a mutual commitment to a shared life or are in a genuine and continuing relationship and therefore was not satisfied they are in a spouse relationship within the meaning of s5F  of the Act.

5. The review applicant applied for review of that decision to the AAT, and that is the matter presently before this Tribunal. 

6. The review applicant appeared before the Tribunal on 26 May 2021 by video conference to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The visa applicant is a 33 year old man of Lebanese nationality, residing in Germany.  He is sponsored by the review applicant, who is a 32 year old Australian citizen. The parties indicated they met in August 2012 and became engaged to marry on14 September 2018 in France.  The visa applicant declared no previous relationships. The application indicates the review applicant was previously married to Carlos Ayoub in 2014 and divorced in 2016; and that she sponsored this partner for a visa lodged in July 2014, though no visa was granted on the basis of that sponsorship.

9. On 10 December 2018 the visa applicant applied for a Prospective Marriage (Subclass 300) visa, sponsored by the review applicant. That application was refused on 29 July 2019.  The decision record for that decision indicates the parties met in Lebanon in 2012, had contact online since then.  They began talking more seriously in June 2018 and met in person in France from 9-25 September 2018. They became engaged during this trip, and had not seen each other again since that time.  The visa applicant was refused a visitor visa on 22 October 2018, prior to lodging the Prospective Marriage visa application. Reference is made in the delegate’s decision to the visa applicant’s interview in relation to the application on 18 July 2019, however no record or notes of this interview are included in Department files BCC20185548085, BCC20196324132, BCC20196324132 provided to the Tribunal.

10. The decision record relating to the refusal of the Prospective Marriage visa provides the following information. The delegate considered the evidence and circumstances of the relationship, and while acknowledging and giving weight to financial aspects of the relationship, the delegate was not satisfied the social aspects were consistent with a genuine relationship.  The delegate had concerns about the lack of evidence of contact between the parties prior to their engagement in 2018, despite claiming they knew each other since 2012. The delegate was concerned about the rapid progression of the relationship from June 2018 and minimal knowledge the applicant had of the sponsor at interview, and also had other credibility concerns relating to the applicant’s responses at interview. The delegate was not satisfied of the genuineness of the relationship and on this basis was not satisfied the applicant and sponsor genuinely intend to live together as spouses and refused the Prospective Marriage visa application. The delegate’s decision record refers to various other matters of concern arising from inconsistencies between his oral evidence at interview and written information in his application form relating to past travel history, past employment, his correct date of birth and names he is known by and his past relationship history.  The decision record states in relation to these matters, while not specifically relevant to the findings concerning the relationship, they may be relevant to other criteria including identity and character.

11. The review applicant sought review of the refusal decision to the Administrative Appeals Tribunal on 5 August 2019.  In September 2019, the review applicant informed the AAT (differently constituted) that she and the visa applicant were married in a civil ceremony in Germany on 16 September.  She also advised the visa applicant was baptised prior to the ceremony on 22 August 2019, and a church ceremony took place on 25 September 2019 before Father Joseph of St George Hopsten.  Evidence of the baptism and civil marriage certificates and photos of the marriage were provided. Further information relating to the visa applicant’s name and the review applicant’s intention to change her name was provided, together with a request to fast track the review application.  On 22 November 2019, the Tribunal (differently constituted) remitted the matter to the Department in accordance with r.2.08E, with a direction that the application be taken also to be an application for a Partner (Migrant) Class BC and Partner (Provisional) Class UF visa. 

12. On remittal of the matter from the AAT (differently constituted) for consideration as Partner (Provisional)/ Partner (Migrant) visa applications, a delegate of the Minister refused to grant the applicant the Partner visas on 3 March 2020. The decision record for this decision indicates consideration of the same evidence provided previously for the Prospective Marriage visa application and references the interview with the visa applicant conducted on 18 July 2019 (for which, as indicated above, no record is available). Reference made to the sponsor (review applicant’s) further visit with the visa applicant from August 2019 to October 2019, during which time the parties married in Germany.  The delegate acknowledged the difficulties in establishing financial and household aspects of the relationship when the parties live in different countries, and accepted that they had married in Germany in September 2019 and the evidence of photos of the applicant’s baptism and their marriage provided in support as social aspects of the relationship, but in the absence of further evidence, did not accept there was sufficient social recognition of the relationship.  In relation to consideration of the nature of commitment between the parties the delegate relied on the evidence presented for the Prospective Marriage application and the interview held with the applicant in July 2019 and appeared to place significant weight on the absence of evidence of contact between the parties between 2012 when they first met and 2018 when they committed to a long term relationship.  Undue weight also appears to have been placed on the visa applicant’s responses at interview to questions about his proposed conversion to Christianity. 

13. Inexplicably, there is no indication in any of the Department file documents provided that the applicant or sponsor were invited to provide further and updated evidence of the relationship following remittal of the matter from the AAT in November 2019 to be treated as a Partner visa application.  The delegate appears to have refused the application entirely on the basis of evidence submitted for the earlier Prospective Marriage visa application and does not appear to have assessed the issue of whether the visa applicant and sponsor were in a genuine spouse relationship as at the date the matter was remitted to be considered as a Partner visa application (22 November 2019) and continuing to date.   

    Evidence before the Tribunal

14. The review application sought review to the Administrative Appeals Tribunal of this further refusal decision on 3 March 2020, providing a history of her dealings with the Department since 2018 when the visa applicant originally sought to apply for a Visitor visa to visit her in Australia.  She also provided information that in the course of these matters it came to her attention that she was barred from sponsoring a partner for a period due to an earlier sponsorship of a person named Carols Ayoub, whom she had no knowledge of.  She alleges that she was the victim of identity theft in respect of this matter.  The applicant requested priority of her application on the basis of the prolonged and unfair processing to date.  She also referred to concerns for the visa applicant’s security and safety if he is to be returned to Lebanon from Germany as a result of his recent conversion.   

15. Further requests for priority processing were made by the review applicant to the Tribunal in May and June 2020, which were refused. 

16. On 1 March 2021 the review applicant again requested priority processing of the application, again referring to the protracted and prolonged processing of the visa applicant’s applications and providing new information that she had returned to Germany to be with the visa applicant, they were living together and she was now three months pregnant.

17. On 2 March 2021 the review application was granted priority.  The matter was constituted to the present Tribunal on 10 March 2021. On 16 March 2021 the Tribunal requested the Department to provide relevant files and documents.  Numerous follow up requests were made and the Tribunal was advised of limited capacity by the Post to action requests due to the circumstances of the pandemic. 

18. The documents and files were provided to the Tribunal on 5 May 2021.    

19. On 29 April 2021 the Tribunal wrote to the review applicant, acknowledging her correspondence to date and inviting the following additional information/evidence:

    ·Medical evidence relating to her pregnancy, including any ultrasound imaging tests, noting her advice to the Tribunal in previous correspondence that she was pregnant.

    ·Evidence of receipts for hotels and any other evidence of cohabitation with the visa applicant, noting her advice in previous correspondence that she has been residing with the visa applicant in hotels for 4 months and they had expended $20,000 to date

    ·Statement from the visa applicant’s employer who she had advised assisted them to locate a rental property.

    ·Updated statements from herself and the visa applicant addressing current arrangements between them relating o financial, household, social and commitment aspects of the relationship.

    ·Any other evidence she wishes to submit in support of the application.

20. On 10 -11 May 20121 the Tribunal received the following evidence from the review applicant: 

    ·Receipts for accommodation for periods 29/8/2020-30/9/2020 (Euro 2300) and 1/10/2020-30/11/2020 (Euro 1600) and letter from visa applicant’s employer, Hubert Plagmann dated 3 May 2021 confirming that visa applicant is a good worker, and that he allowed him and his wife to stay in his granny flat until they moved into a house he found for them in Hauptstrasse 16, 49832 Thuine.

    ·Ultrasound images relating to review applicant’s pregnancy taken 18/1/2021 (3 months) and 29/3/2021 (5 months).

    ·Detailed Statement from review applicant

    ·Payslips from Hubert Plagemann relating to visa applicant’s employment from October 2020-April 2021

    ·Screen shots of visa applicant’s bank account showing regular payments for rent, internet, car insurance, groceries, and credits from his wages and from the review applicant.

    ·Review applicant’s CBA statements for period October 2020- May 2021 showing regular transfers to the visa applicant

    ·Photos of the visa and review applicants taken prior to lockdown in 2020 in Germany, at the lake in hostel, cathedral of Cologne celebrating Valentine's Day, attending the carnival, the chocolate museum in Cologne, Lindt cafe, Turkish restaurant in Aachen

    ·Certified translation of Rental (Landlord’s) Certificate naming visa applicant and review applicant residing at Hauptstrasse 16, 49852 Thuine, from 15 December 2020.

    ·Link to a YouTube clip relating to the visa applicant’s baptism

    ·Letter dated 6 May 2021 confirming the review applicant is at 24 weeks pregnancy according to the Mutterpass/Maternity Records, there are no complications until now.

    ·Detailed statement of relationship from visa applicant.

21. On 26 May 2021 the parties appeared by video hearing before the Tribunal to give evidence.  The Tribunal took oral evidence from the review applicant alone and then the visa applicant, in her presence.  It asked detailed questions of both, addressing the inception and background of the relationship, current circumstances and arrangements relating to financial, household, social and commitment aspects of the relationship.  They gave their evidence to the Tribunal in a frank and open manner, answering its questions spontaneously and without hesitation. Their evidence on most matters was substantially consistent and where it differed, the differences could credibly be attributed to different perspectives on the same topic. The Tribunal found the review applicant and visa applicant were credible witnesses and accepts their oral evidence on this basis. 

22. A summary of relevant evidence they gave follows.  The review applicant has been in Germany since 29 August 2020 when she travelled there from Australia to be with the visa applicant. She applied for and was granted a travel exemption by the Australian authorities to depart Australia. She told the Tribunal that she applied for the exemption to reunite with her husband. Prior to that, in March 2020 she had applied to the German consulate for a family reunification visa to be with the visa applicant because at that time it was necessary as the German borders were closed to general visitors.[1]  By August 2020 the borders were open again and it was no longer necessary for her to obtain an exemption to enter Germany so she was able to enter after she obtained permission to leave Australia. When she arrived in Germany she went to Hopsten where the visa applicant lived. They stayed together in a hotel there, and after that moved to several other hotels until they found the accommodation they are currently at. The visa applicant previously lived in accommodation provided by the local authority on the basis of his visa status.  This was share accommodation and it was not possible for them to live there together.

    [1] This is consistent with independent information before the Tribunal: Coronavirus: Germany latest country to close borders - BBC News

23. Their current accommodation is a private rental, arranged by the visa applicant’s employer.  The visa applicant pays the rent and all their expenses from his wages.  She exhausted her resources almost entirely on the hotel accommodation costs.  They also purchased items for the apartment together, including furniture and a TV etc.  The visa applicant works full time for an electrician.  He has been working in this job since around August or September 2020, prior to that he did not have regular employment and used his savings to live. The review applicant received Centrelink payments when she was in Australia.  She stated that she advised Centrelink when she married of her relationship status.  Her payment rate did not change because she also advised them that he was not in Australia and was told she could continue to be paid at the single rate.  When she advised that she was departing Australia her payments ceased immediately. She has not received any payments from Centrelink since departing, although she is challenging this decision as she believes she should have received payments for a period. 

24. The review applicant confirmed her family comprises her parents and one brother in Australia. They have all met the visa applicant and support the relationship.  Her mother has met the visa applicant in person, in France and again in 2019 when they married.  She attended the wedding. He has met her father and brother over video chats.  The visa applicant has no relationship with his biological parents. He grew up with his grandfather who has since passed away.   Neither of them have any close relatives in Germany.

25. Regarding the matter of her previous marriage, she explained that she doesn’t know who this person is and denies marrying him.  She believes her identity was used without her knowledge. She first came to know of this when she tried to sponsor the visa applicant for a visitor visa and her then migration agent said the IMMI system indicated there was a sponsorship bar on her.  She subsequently tried to get evidence about this matter but was unsuccessful.  Eventually she applied for and obtained a divorce because she thought that was the only way to deal with it.  Since then she understands there are other steps she could have taken and intends to pursue this matter in future when she returns to Australia.  The Tribunal noted that no issue arises regarding the sponsorship limitation for the present case. 

26. The review applicant confirmed the history of her relationship with the visa applicant. They met in person initially in 2012 while she was on holidays in Lebanon with her mother.  They remained friends after that, keeping in contact intermittently by distance between 2012 and 2018.  She next met him in person in September 2018 in France and they decided then to get involved in a serious relationship.  They tried for him to apply for a visitor visa for Australia in September 2018 but it was refused and following that they applied for the Prospective Marriage visa.  When it was refused they decided to marry and in September 2019 they married in Germany.

1. The Tribunal explained that the issues before it are whether they are in a spouse relationship at time of application, which in this case is the date of remittal by previous AAT, 22 November 2019, and continue to be in a spouse relationship to the present time.

2. Regarding financial aspects of the relationship, the review applicant explained that in preparation of coming back to Germany she pooled all her resources to obtain sufficient funds.  She sold her car, her belongings including her pets and brought these funds with her when she came.  Her parents undertook to keep her apartment going by paying the rent so that she has somewhere to come back to.  She spent all her funds on the hotels and costs of travelling to Germany.  Prior to this, in the period from October 2019 to August 2020, they each covered their own expenses. He lived off his savings in Germany and she lived off her Centrelink payments in Australia. From time to time they each sent money to the other as needed. Currently, the visa applicant is the sole income earner and supports her financially.  He pays the rent and all living expenses. They each maintain their own accounts but have shared their passwords with each other. They bought household items together. They have no joint real property or loans.

3. Regarding household arrangements, the visa applicant goes to work from 8-5.30 and often works longer hours, and often on Saturdays. Since her arrival, they have mostly been under lockdown conditions so they stay home generally.  When they go out they shop together.  They watch movies, cook and clean together.  Pre COVID restrictions they attended church services together, now they watch it online.

4. The review applicant is six months pregnant, since November last year.  She has access to antenatal care through the visa applicant’s insurance.  At the early stage she was very unhappy with the doctor she had and it caused her a lot of stress. The visa applicant was aware of this and helped to arrange for her to get a new doctor. Since then, she has a female doctor and she is much happier.  So far the pregnancy is progressing well and she has had no complications.  She would prefer to return to Australia to give birth but she does not want to come back without the visa applicant.   This raises an issue for her here because they require her to be vaccinated to give birth in the hospital and she does not agree to being vaccinated for fear of the impact on the baby.  She has discussed this with the visa applicant and they have discussed getting a midwife for a home birth if necessary. Her first option would be to return to Australia with the visa applicant to give birth here.

5. The review applicant stated that her family fully supports the relationship and is aware of her pregnancy.  Though she has family support in Australia, she wants the visa applicant to be with her for the birth as she sometimes clashes with her mother.  When asked why no recent statements were provided from her parents or brother, she said she did not think it was necessary as her mother provided one previously but there is no issue in providing a statement if necessary.

6. The Tribunal asked if they have discussed plans for the future.  They plan to live in her apartment. He would like to eventually open his own business. She will eventually return to her study. They will care for their child together.  They have discussed baptising the child. Regarding education, they have discussed home schooling or private school.

7. The review applicant stated that they have no disagreements between them. They share family values and get on very well.  She reiterated that she cannot be separated from the visa applicant, despite her fear of having her baby in Germany.  She hopes he can be granted a visa and travel with her in time to have the baby in Australia.

   Evidence from visa applicant

8. The visa applicant gave consistent evidence to that of the review applicant about where he is currently living, with whom and the history of previous addresses. He is presently working full time and supports the review applicant with his income.  Previously he had difficulty managing. He had some casual income and relied on his savings.  The review applicant’s mother also helped by sending some money through the review applicant.

9. The visa applicant confirmed he and the review applicant know each other’s passwords for their personal accounts. They share all their resources.  She paid for the hotels and now he is paying the rent and expenses. Regarding his work, he confirmed he works Monday to Saturday, 8-5.30pm. Before COVID they used to travel around a lot, visiting places and they had many plans to travel more.  Now with the restrictions in force they just go for drives and out shopping. 

10. The review applicant is 26 weeks pregnant.  When asked how things have been going, he started to describe various issues she has had with pain in her legs and back. He said it has been hard, for him anyway.  She has had access to medical care, and generally there have been no medical issues. When asked if there were any issues with her medical care he said she did have an issue early with the doctor, who gave inappropriate treatment and she was very upset about it.  He tried his best to change her doctor and eventually they were able to get a different doctor, a female who the review applicant is much happier with. The visa applicant stated that the review applicant is not keen to give birth in the hospital here.  He indicated that in his view, the problem may be her difficulty with the German language which even for him is difficult.  He also believes the medical system is deficient in providing basic care and humanity, especially to women because they treat people all the same. 

11. Regarding their discussion about the birth of the baby, he said the review applicant is not keen to have a vaccine against COVID and this is required to give birth at the hospital so they have discussed getting a midwife to assist her to birth at home. When asked if he was in agreement with this, he said he has suggested that she return home to Australia. Although he wants to be present for the birth of his child he does not want to be selfish and wants the best for her. He has told her this.

12. The Tribunal asked how they support each other.  He said they each take care of the other. He has been caring for her through the pregnancy and she also looks after him. They do everything together.  It has been quite a struggle for them in Germany these past months but they have come through it all together.  Nothing has been easy.

13. Regarding future plans, he said he has IT skills and wants to open a business in future but first he will work.  She will continue her study. They agree to baptise their child.  Regarding education, he is happy to leave the decision to the review applicant. He is sure she will discuss it with him, but she knows the system there better. 

14. The visa applicant confirmed he has met her mother in person and her father and brother by video.  They all know and support the relationship.

15. Following the hearing the review applicant provided copies of email correspondence relating to her communication with Centrelink International Services about her DSP payments; the favourable response from DOHA to her application for a travel exemption to depart Australia in August 2020 and the unfavourable outcome of a request for a travel exemption for the visa applicant to travel to Australia in April 2021, refused because he does not hold a valid visa for travel to Australia.

    FINDINGS AND CONSIDERATION

    Whether the parties are in a spouse or de facto relationship

16. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

17. ‘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 review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

18. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the evidence, the Tribunal accepts 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?

19. The Tribunal has considered all of the evidence provided by the visa applicant and sponsor to the Department, the documentary evidence provided by the review applicant to the Tribunal as well as the oral evidence obtained at the hearing from the review applicant and visa applicant and makes the findings below addressing the matters referred to in r. 1.15A(3).

    Financial aspects of the relationship

20. The parties have been living together in Thuile, Germany since August 2020, when the review applicant travelled there to be with the visa applicant.  Prior to this they lived in different countries, and each generally took care of their own living expenses. The visa applicant also mentioned in his oral evidence that he received some financial assistance form the review applicant’s mother in this period.  Since living together the review applicant and visa applicant have pooled their financial resources and share living and household costs.  They pay rent, internet and grocery bills together.  The review applicant used the funds she had accumulated from Australia to pay for the hotels they stayed in initially. The visa applicant is working and his pay from employment goes into his personal bank account. The review applicant made regular contributions by way of transfers from her Australian bank account into his account. Evidence of screen shots from the visa applicant’s account and statement from the review applicant’s account was provided.  The review and visa applicant confirmed all of this in their oral evidence, and documentary evidence of bank statements and receipts corroborate it.

21. Having considered the financial aspects of the relationship and their particular circumstances living in separate countries, the Tribunal is satisfied that the arrangements are consistent with a genuine and continuing relationship.

    Nature of the household

22. The Tribunal accepts on the oral evidence and documentary evidence of the Rental Agreement that the parties have been living together since December 2020 at their current address and for some months prior to that in hotels.  It accepts that prior to that they were not living together because they were in different countries. It accepts that the review applicant has travelled to France and Germany on three occasions now from Australia to spend time with the visa applicant, and married him in Germany on the second visit.  She travelled back in August 2020 during the COVID 19 pandemic to be with him and is now still there. 

23. Evidence is before the Tribunal that the review applicant is currently pregnant with a child of the relationship.  The parties gave consistent evidence about her pregnancy and the antenatal care she is receiving and their plans for the birth of the child. 

24. Their evidence about their daily routines and activities together was also generally consistent and credible.

25. The Tribunal is satisfied, within the context of their circumstances, the nature of the household aspects of the relationship are consistent with a genuine relationship.

    Social aspects of the relationship

26. The parties were familiar with each other’s families and family circumstances.  Because of they are both living separately from their respective families there is not much contact or opportunity to integrate into and with each other’s families.  Despite this, the evidence of the parties is that the review applicant’s mother has met the visa applicant in person several times, and he has met and interacted with her father and brother via video chats and they are all supportive of the relationship

27. The evidence indicates the visa applicant converted to Christianity and the denomination of the review applicant and that they share an interest in their faith.  Prior to COVID restrictions the review applicant gave evidence that they attended church services together in the area they are living.  Since COVID restrictions, they watch the services online together.  They each stated that they share common values. The visa applicant told the Tribunal that prior to COVID restrictions they travelled to many places together. 

28. The review applicant tol the Tribunal she declared her relationship to Centrelink upon getting married.  She stated that she told them that he was overseas, and as a result there was no change to her payment rate when she was in Australia.  Since departing Australia, she advised Centrelink and her payments ceased. 

29. The Tribunal is satisfied on the evidence that the review and visa applicant present to friends and family as a married couple and that their close family members and friends accept their relationship as genuine and ongoing.  It accepts they have planned and taken joint social activities, sightseeing when possible in the pre COVID period.  On the evidence, the Tribunal is satisfied the social aspects of the relationship are consistent with a genuine and ongoing relationship.

    Nature of persons' commitment to each other

30. The Tribunal accepts the parties initially met each other through mutual friends in 2012 and reacquainted in 2018 in France with a view to commencing a committed long term relationship.  Since then they became engaged and eventually married in September 2019 in Germany.  They lived in separate countries while they actively progressed the visa applicant’s visa application to enable him to travel to Australia to marry and commence their life together. When this did not happen as planned the review applicant returned to Germany and they married there.  When they were again faced with a delay in the processing of the application, the review applicant decided to return to Germany, despite the circumstances of COVID 19, to live with the visa applicant.  The Tribunal is satisfied that this demonstrates significant commitment on the part of the review applicant in particular to the relationship.  The Tribunal accepts the relationship between them has now been ongoing for over 3 years, and has withstood significant challenges of distance, prolonged processing of the visa applications and, more recently, complications of the global COVID pandemic. Despite all this, they have now been living together in the same country for the last 9 months. 

31. They are now expecting their first child and gave evidence of mutual commitment to starting their family together and to raising their child together.  They gave consistent evidence of their future plans which included living together in Australia in the review applicant’s apartment, the visa applicant working and eventually starting his own business and the review applicant resuming her studies.  They indicated a desire to have their child baptised.  While their evidence about schooling for their child was not entirely consistent, the differences are plausibly attributable to their different perspectives on the discussions they have had.

32. The Tribunal accepts from their evidence, and observations of the couple at the hearing, that they provide companionship and emotional support to each other.

33. In sum, the evidence relating to the nature of the commitment supports the existence of a genuine and ongoing relationship.   

34. Having regard to the above findings relating to the matters enumerated in r.1.15A(3), and considering all of the evidence holistically, the Tribunal is satisfied the review applicant and visa applicant have a mutual commitment to shared life to the exclusion of others; are in a  genuine and continuing relationship; and are not living separately and apart on a permanent basis.

35. 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 the time of this decision.  Therefore the visa applicant meets cl.309.211 and cl.309.221.

36. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    Consideration of application at primary stage

37. During the hearing, and in substantial email correspondence while the matter has been before the Tribunal, the applicant has repeatedly expressed her profound distress and disappointment about the refusal decision by the delegate and prolonged processing of the application it has caused.  In her written correspondence she has been especially aggrieved that the reasons for decision suggest the delegate failed to consider relevant further evidence provided to the previous Tribunal and the Department and the delegate erroneously referred to evidence and material provided in relation to the Prospective Marriage visa and appeared to focus unduly on the period between 2012-2018 prior to the commencement of their long term relationship, when relevant evidence of their marriage and her subsequent trip to be with the visa applicant was provided.

38. The Tribunal observes from Department file papers before it that the review applicant’s grievances in this matter are not entirely unfounded.  Having considered the material that was submitted to the Department and previous Tribunal, the fact that subsequent to the Prospective Marriage visa application, they married and the matter was remitted to be considered as a Partner application from that date (22 Nov 2020) it is unfortunate that the primary assessment focussed so heavily on the period prior to this and appears to have overlooked evidence about the circumstances of the relationship at the relevant points in time. Having now also had the benefit of oral testimony from the visa applicant and sponsor, the Tribunal makes the additional observation that it is particularly unfortunate that no attempt was made to conduct an interview prior to the decision being made, as this may have clarified and corrected any concerns or misconceptions and avoided the substantial distress caused by the decision and delay it has caused.

39. Since COVID travel restrictions came in last year, the review applicant was successful in obtaining an exemption to travel to reunite with her husband in 2020 and has been living with him since then.  She is now pregnant and finds herself in a significant dilemma regarding the arrangements for the birth of her child and expressed her strong desire to be able to return to Australia for the birth with the visa applicant.  It is clear from her presentation and evidence that separation from the visa applicant and further prolonged processing of this application will cause her significant emotional and psychological distress, all the more intensified by the circumstances of COVID. 

40. In light of the above, and the particular history of the application,  the Tribunal recommends, as far as is possible in the current fast changing circumstances, that consideration be given to prioritising the processing of this application on remittal.  

    DECISION

1. 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.

   Meena Sripathy
   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).