Bayah (Migration)

[2020] AATA 4876

Bayah (Migration) [2020] AATA 4876 (6 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Rana Bayah

VISA APPLICANT:  Mr Osman Khaled

CASE NUMBER:  1800690

DIBP REFERENCE(S):  OSF2016/014983

MEMBER:Helena Claringbold

DATE:6 November 2020

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(2) of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 06 November 2020 at 8:58am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – validly married – financial, household and social aspects of relationship – nature of commitment – inconsistent evidence about residential addresses – verification of addresses – sponsor’s physical and mental health and treatment, and limited social support – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 359AA
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2 cls 309.211(2), 309.221

statement of decision and reasons

APPLICATION FOR REVIEW

1. On 22 September 2016, Mr Osman Khaled, the visa applicant, applied for a Partner (Provisional) (Class UF) visa. The application was based on his spousal relationship with Ms Rana Bayah, the sponsor and review applicant.

2. On 6 November 2017, a delegate of the Minister for Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant and the sponsor are genuine spousal partners. Therefore, the visa applicant did not meet cl.309.211 and cl.309.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 9 January 2018, the sponsor provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision brought by the sponsor.

3. The sponsor’s migration agent (migration agent) made several requests to have this matter processed as a priority.  He advised the Tribunal that the sponsors psychological condition was worsening and she was taking medication.  The applicant’s migration agent advised the Tribunal that the sponsor was depressed and anxious and requested that the Tribunal hearing be held by telephone.  A letter from a psychologist dated February 2020 was provided to the Tribunal.  The psychologist advised that the sponsor has major depressive disorder and that the sponsor stated that the delay in the processing of the visa application is causing significant impact on the sponsor’s well-being.

4. On 28 April 2020, the Tribunal wrote to the applicant and advised that because of the COVID-19 pandemic the Tribunal was no longer holding face to face Tribunal hearings. She was advised that due to the complexity of the case alternative arrangements were not suitable.  

5. In April 2020, the migration agent made multiple requests that the Tribunal hearing be held by telephone. On 6 May 2020, the Tribunal advised the sponsor that due to the complexity of the matter a Tribunal hearing by telephone was not suitable.

6. On 3 June 2020, the Tribunal wrote to the sponsor and invited her to provide information in writing as follows: evidence to support that she has the capacity to fully participate in a Tribunal hearing by telephone. On 9 June 2020, the sponsor’s migration agent wrote to the Tribunal and stated the following: the sponsor has the capacity to participate by telephone. He provided a letter from a psychologist dated June 2020.  The psychologist stated the following: the sponsor’s mental health does not prevent her from participating in a Tribunal hearing by telephone. Despite her long-term depression and distress the sponsor is co-operative and friendly and displays sound levels of empathy, insight and judgement.  In the psychologist’s opinion the sponsor has capacity to fully participate in a Tribunal hearing by telephone.

7. On 1 July 2020, the sponsor appeared before the Tribunal by telephone to give evidence and present arguments (the first Tribunal). The Tribunal discussed with the sponsor aspects of the parties’ relationship.  It took evidence about the residential addresses where the parties claim to have lived together. The sponsor gave evidence about two residential addresses.  The Tribunal asked the sponsor about a document titled ‘Residence Attestation’ ‘Actual Residence Address’ which recorded the parties living at a residential address, different to those given by the sponsor. The sponsor appeared not to have any knowledge of the address given in the ‘Residence Attestation’ document. As it was not possible to show the sponsor the relevant document, the Tribunal hearing was adjourned.  The Tribunal advised the sponsor that an in-person hearing would be scheduled. The Tribunal explained to the sponsor that an in-person hearing would provide a better and fairer opportunity for her to present her evidence and arguments.  The sponsor’s migration agent agreed with these sentiments.  

8. On 4 August 2020, the sponsor appeared before the Tribunal (the second Tribunal) to give evidence and present arguments. The Tribunal also took evidence from the visa applicant and from a witness and a psychologist. The Tribunal was assisted by the service of an interpreter in the English and Lebanese languages. The sponsor was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal has taken into consideration, individually and completely, all the evidence in the Department of Immigration and Border Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearings.

    ISSUE

11. The issue in the present case is whether the visa applicant is the spouse of the sponsor as defined in s.5F of Act.

    BACKGROUND

12. The visa applicant was born in 1974 in Bakhoun, El Dannieh, Lebanon. His parents and 11 siblings live in Lebanon. He has one sibling who is deceased and one sibling who lives in Germany. The visa applicant did not declare any previous partner relationships. As detailed in the delegate’s decision record, in 2016, he was refused a Subclass 457 visa.

13. The sponsor was born in 1970 in Bakhoun, El Dannieh, Lebanon. Her father and one brother are deceased. Her mother and four siblings live in Australia. On 16 May 1988, she married Mr Khaled Bayah. On 12 August 2011, Mr Bayah and the sponsor divorced. On 17 October 2011, in a religious ceremony she married Mr Mohamad Nazem Khlaaji. On 5 June 2013, Mr Khlaaji and the sponsor divorced religiously. The sponsor has not declared any children from these relationships. On 1 June 1976, the sponsor entered Australia. On 10 September 1985, she was granted Australian citizenship.

14. On 10 August 2015, the visa applicant and the sponsor (the parties) met in Bakhoun, North Lebanon.  On 7 September 2015, the parties became engaged. In August 2016, the parties married in El Dannieh, North Lebanon. The sponsor returned to Australia on 5 October 2016.

    Is the visa applicant the spouse of an eligible person?

15. The Tribunal is satisfied that the sponsor, at the time of visa application and at the time of this decision, was an Australian citizen.

    Are the parties validly married?

16. At the time the visa application was made, the visa applicant provided evidence of his marriage to the sponsor. 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 parties in a spousal relationship?

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).

    CLAIMS AND FINDINGS

    Are the other requirements for a spousal relationship met?

18. 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.

    The financial aspects of the parties’ relationship

19. As recorded in the delegate’s decision record, during his interview with the Department the visa applicant stated that he didn’t share finances or bank accounts with the sponsor. A joint bank statement is dated 7 December 2017.  It recorded an opening cash deposit of US1,000 being made on 1 December 2017. Money transfers record the sponsor transferring different amounts of money to the visa applicant. They begin in November 2016 and total approximately $14,000.  Money transfers from the visa applicant to the sponsor in 2019 and 2020 total approximately $1,800. The sponsor’s superannuation statements dated 30 June 2019 recorded the visa applicant as the sponsors spouse and as a 100 per cent beneficiary.  

20. The sponsor told the first Tribunal the following. The parties joint bank account was opened in 2017 with US$1,000 and maybe the visa applicant uses the joint bank account.  She then stated that the visa applicant deposits and withdraws money from the joint bank account. She cannot access the joint bank account from Australia but accesses it when she is in Lebanon and has money available. The current balance in the joint bank account is about US$1,000. The visa applicant does not have any other bank accounts, the sponsor has one bank account in Australia.  Her income is derived from a carer payment of $1,200 fortnightly which is deposited into this bank account. The money the parties’ sent to each other was for gifts.  They could not provide evidence of sending these monetary gifts and they then sent money via money transfers. The Tribunal asked about a money transfer for $3,093 dated 8 June 2018, from the sponsor to the visa applicant. She stated that maybe she had this money because people in Australia gave it to her to send to the poor in Lebanon. She also claimed that the visa applicant sent her money when she was having financial difficulties and in October 2019, he sent something like US800.The visa applicant’s income is derived from his employment.  He is living in a house owned by his deceased father, which he will inherit with ownership of the house being transferred to the visa applicant and the sponsor. The transfer is taking time because of the current country situation as ‘everything is closed’ and because (all) his siblings must sign the transfer papers. Currently the house remains in the visa applicant’s father’s name.

21. The visa applicant basically provided the second Tribunal with the same information as the sponsor gave to the first Tribunal.  In addition, he told the second Tribunal the following.  The joint bank account was meant to be a running bank account for the parties. However, since stopping work he hasn’t deposited into the bank account. He has US20,000 which he uses for living expenses.

22. Various receipts dated 2017, have been provided.  These appear to be for the purchase of jewellery.  Another receipt dated 2017 is partly written in English and partly in another language. It appears to be a receipt for hotel accommodation.  In February 2020, a psychologist stated that the sponsor has limited financial support in Australia.

23. The Tribunal accepts that in December 2017, the parties had a joint bank account and that they sent money to each other as recorded above and that the visa applicant is recorded as the beneficiary on the sponsor’s superannuation fund and that jewellery was purchased. The parties do not have any joint ownership of real estate or other major assets and do not have any joint liabilities.  The parties do not pool their financial resources, especially in relation to major financial assets and other than the sponsor’s superannuation they do not owe any legal obligation in respect of each other.  There appears to be some sharing of financial matters. The Tribunal accepts that the parties live in different countries and may have shared limited day-to-day household expenses.

    The nature of the parties’ household

24. The sponsor lives in Australia and the visa applicant lives in Lebanon. The parties provided inconsistent information about the addresses where they lived together.  When discussed at the Tribunal hearings they continued to provide multiple addresses and claimed that the addresses related to two properties, one being the holiday rental property (holiday rental) and the other being the visa applicant’s home.  

25. The sponsor told the first Tribunal the following. She lives with her mother at a Chester Hill address and they have lived there for nearly a year. Prior to this she lived at a Granville address with her mother and brother and his wife. She was living at this address when she met the visa applicant. The visa applicant lives in Haklit Bakhoun. The sponsor was unable to provide a residential address for the visa applicant.  She stated that in Lebanon people refer to their addresses differently (than in Australia) and by the locality of the address or the owner of the property. 

26. The parties told the second Tribunal hearing the following.  They lived together for approximately five months between 2015 and 2019.  They also lived in a rented holiday home for an additional two months in 2016. When they lived together the visa applicant paid for the groceries and the household expenses and shared the responsibility of housework.

27. The second Tribunal put information to the sponsor under s.359AA of the Act.  The relevance and consequence of the information was explained to the sponsor.  She was invited to comment on or respond to the information and was advised that she could seek additional time to do so.  The sponsor requested and was granted additional time to respond. The information put to the sponsor is as follows:

    ·The visa applicant told the second Tribunal the following. The parties began living together at a holiday rental with an address of Dahr Alarauin, Nakhla, Harra Khassa El Koura, North Lebanon, Trad Building First Floor (first address). The Tribunal notes the sponsor’s claim that the interpreter spelt Dahr Alarauin incorrectly and it should be spelt as Dahr El Ein. This information was put to the sponsor as this address is inconsistent with the address recorded on the contract for the holiday rental of, Section 4 Eastern side of real estate, 2461 First Floor, Cadastral Region, El Nakhle, El Koura (second address).

    ·The visa applicant told the second Tribunal the following. His migration agent told him that he needed evidence of where the parties lived together.  After he and the sponsor vacated the holiday rental, he went to the Mayor and showed him the lease for the holiday rental and photographs of the sponsor and the visa applicant in the property.  The Mayor then issued the document ‘Residence Attestation’ ‘Actual Residence Address’ document for Tallet Naji, 64 Street, TRAD Building, First Floor, Haret El Khassa, El Koura (third address). This information was put to the sponsor because the ‘Residence Attestation’ ‘Actual Residence’ (address) document was written after the visa applicant claimed that the parties had vacated the holiday rental. 

    ·The visa applicant told the second Tribunal the following. From 27 November 2014 he lived with his mother at Mahmoud Khallid’s House, Haklit Street, Bakhoun, Dannieh, North Lebanon.  He stated that from 2017, he lived at the 3^rd Level Osman Building, Haklit Road, Bakhoun, El Dannieh, North Lebanon.  This evidence was put to the sponsor because the addresses provided at the Tribunal hearing are inconsistent with those declared by the visa applicant on the visa application forms where the applicant declared that from 27 November 2014 until the date of visa application 22 September 2016 his residential address was 3^rd Level Khalid Building, Haklit Road, Bakhoun, El Dannieh, North Lebanon.

28. On 17 August 2020, in a post Tribunal submission, the sponsor provided third-party statements from different mayors.  The mayors declared that the variations in addresses the parties provided, related to the same residential properties. Other statements attested to the parties’ living at these addresses.

29. On 9 September 2020, the Tribunal wrote to the Department and sought advice about the third-party statements. It asked whether the mayors held the positions as claimed and whether the documents are genuine. It also asked for advice about whether the claims made in the third-party statements about the addresses relating to the same properties are correct.

30. On 23 October 2020, the Tribunal received information from the Department as follows:

    ·The addresses given for Dahr El Ein and Bakhoun are for the same property. Outcome: Genuine

    ·Contact was made with the Koura registry and the Bakhoun registry.  Registrars confirmed that all the names listed in the applications (mayors’ names) are current mayors of the villages. Outcome: Genuine

31. The parties do not have any responsibility for the care and support of children. The Tribunal accepts that the parties shared living arrangements as they claim and accepts that when they live together the parties share the responsibility of housework.

    The social aspects of the parties’ relationship

32. The parties told the Tribunal the following. They socialised with family and friends and particularly enjoyed visiting Ayoun Alsamak. They enjoy going to restaurants and having coffee and going shopping. They travelled to Turkey together and previously planned a trip to Egypt.  Third-party statutory declarations are dated August 2016. Mr Kalajieh stated the following: he had worked with the sponsor for seven years and had known the visa applicant for a year and met him when he visited Lebanon. He witnessed the parties talk and send photographs to each other throughout the day and it is obvious that the parties love each other. He believes the parties’ relationship to be genuine.  Ms El Masri stated the following: she had known the sponsor for 20 years and had been her friend for 15 years.  She had known the visa applicant for 25 years as a family friend.  The sponsor got to know the visa applicant about a year ago.  Recently Ms El Masri and the sponsor were in Lebanon and saw the visa applicant more often. They went out to a lot of places together and she witnessed the parties happy together. She believes that the parties’ relationship is genuine.

33. In April 2019, a former state and federal member of parliament wrote on the sponsor’s behalf and stated the following:  the sponsor not mentioning a holiday in Turkey with her mother and contradictions about who purchased the wedding dress are elevated to evidence on bona fides. The sponsor didn’t want to wear the same coloured dress as her attendants and separately purchased a second dress. There is a convincing account of the parties’ contact with each other and the sponsor visited the visa applicant on two occasions, once for a month and the other for two months. The sponsor lives with her mother and is her carer.  He believes that the visa applicant not mentioning a previous visa refusal should not lead to the application for a partner visa being disregarded. 

34. In February 2020, a psychologist stated that the sponsor has limited social support in Australia. A travel itinerary has been provided in the sponsors name for travel on 22 November 2017 from Sydney to Beirut and on 31 December 2017, from Beirut to Sydney.  Another travel itinerary is for travel on 24 November 2019 from Sydney to Beirut and on 22 January 2020 returning to Sydney. Various copies of social invitations to the parties are dated 2017. Photographic evidence depicts the parties together and with others on their wedding day and together and with others at different locations. The psychologist told the second Tribunal the following. She has been treating the sponsor for two years. The sponsor had the capacity to fully participate in a Tribunal hearing. The sponsor has had a challenging life. Her depressive condition has worsened as a result of the visa refusal and review. She is a vulnerable person and travelling to and from Lebanon is not an option for her. The sponsor has had suicidal ideations but they are currently low but when prone to a helpless cycle these thoughts are triggered.

1. Ms Jebara who is a cousin of the sponsor told the second Tribunal the following. The sponsor and the visa applicant have a genuine and loving relationship.  She has been with them and visited them and met the sponsor’s mother-in-law. She witnessed them together and saw the joy they bring to each other. They went out socially together and the parties entertained their children for a time.

2. Photographic evidence depicts the parties together and with others at different locations.  Records of communication have also been provided.  The Tribunal told the sponsor that a DVD recorded in the delegate’s decision record is not before the Tribunal.  The sponsor advised that this was previously provided and the migration agent stated that he had not been provided with the DVD.

3. The Tribunal accepts that the parties represent themselves to other people as being married to each other and that other persons accept them as being married to each other.  It accepts that the parties plan and undertake joint social activities.

   The nature of the parties’ commitment to each other

4. A family register document dated 18 December 2017 records the parties as being married to each other. The parties told the Tribunal the following.  They love each other and do not want to live apart. They would like to start a family including utilising an IVF program if necessary. The visa applicant will work and assist the family to live in Auburn.

5. The Tribunal discussed information about the visa applicant’s and sponsor’s interviews with the Department as detailed in the delegate’s decision record and is satisfied with the sponsor’s responses.

6. In October 2018, a psychologist diagnosed the sponsor with major depressive disorder with generalised anxiety. He stated that the sponsor reported marrying the visa applicant in August 2016 and being unable to visit him until December 2017 because of health issues. In February 2020, a psychologist stated that the sponsor visited the visa applicant in November 2019 for two months but couldn’t remain with him because of her health and the conditions in Lebanon.  Other comment relates to the sponsor wanting to have children with the visa applicant.

7. The Tribunal accepts the following.  The parties met in August 2015.  They became engaged in September 2015 and married in August 2016. The parties have lived together for approximately seven months. During their relationship they have provided companionship and emotional support to each other and see their relationship as long-term.

   Other considerations

8. Medical letters dated 2016 and 2017, refer to the sponsor being depressed and anxious and having surgical procedures and of her benefiting by having the visa applicant with her. In October 2018, a medical practitioner stated the following: the sponsor was suffering from chronic major depression exacerbated by the visa applicant’s visa application being refused. She had liver surgery and gastric bypass surgery. She was unable to eat as she was nauseous and has lost weight. She needs care at home which would be best facilitated by the visa applicant. In a letter dated September 2019, a psychologist stated the following: that the sponsor had major depressive disorder. These symptoms remain severe and are exacerbated by the separation from the visa applicant. The sponsor has reported increased symptoms leading to suicidal ideation. The sponsor reported that she attempted to hurt herself recently by intentionally overdosing on pain medication and does not have any motivation or purpose to live. In a letter dated February 2020, a medical practitioner stated the following: that the sponsor suffers from depression and anxiety.  She has been on medication for two years, but her condition has not improved. Her condition is made worse by not being able to see the visa applicant and she has waited two years for the partner visa to be approved. He believes that the sponsor being reunited with the visa applicant will improve her health. Also, in February 2020, a psychologist stated the following: the sponsor was referred in August 2018.  She has attended regular psychological treatment sessions to assist her major depressive disorder. In 2019, she visited the visa applicant for two months.  She reported that during this time she saw an improvement in her functioning. The sponsor’s symptoms are triggered and exacerbated because of the delay in obtaining a partner visa for the visa applicant and this is causing significant impact on the sponsor’s health. Her psychological symptoms remain severe and are exacerbated due to being separated from the visa applicant. 

9. The sponsor’s migration agent told the Tribunal the following. The sponsor is in a difficult position. She has undergone surgery and is psychologically stressed and is on medication. She may not have remembered things correctly. The parties plan to have children and the sponsor is biologically ageing. The parties’ desire to have children shows a genuine relationship and is compelling evidence. After the Department interview, the visa applicant remembered about the refusal of the Subclass 457 visa but found it increasingly difficult to contact the Department (to adjust the error).

10. The Tribunal considered the information about the sponsor’s psychological condition.  It has deliberated on the psychologist’s opinion, as detailed earlier, that the sponsor has the capacity to participate fully in a Tribunal hearing. The sponsor was articulate and succinct when responding to questions and provided exact details about many aspects of the parties’ circumstances.  The Tribunal is satisfied that the sponsor has been provided a fair and just review.   

11. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered all the evidence individually and as a whole including the Department and Tribunal files and the evidence pre and post hearing and at the Tribunal hearings. Overall, the Tribunal is prepared to accept the parties’ evidence about their relationship. The parties have satisfied the Tribunal that at the time of application and this decision they have a mutual commitment to a shared life to the exclusion of all others; that they have a genuine and continuing relationship; or that they live together and not separately and apart on a permanent basis.

12. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and at the time of this decision.

13. Therefore, the visa applicant meets cl.309.211(2) and cl.309.221 of Schedule 2 to the Regulations.

14. 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.

    DECISION

15. 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(2) of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Helena Claringbold
    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).