Bell (Migration)

Bell (Migration) [2023] AATA 3086 (13 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Debra Mary Bell
VISA APPLICANT:  Mr Islam Mohamed Hussein Mohamed
CASE NUMBER:  2107336
DIBP REFERENCE(S):  BCC2020/490913
MEMBER:Peter Emmerton
DATE:13 September 2023
PLACE OF DECISION:  Adelaide

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 13 September 2023 at 12:22pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner) (Provisional) – genuine and continuing spousal relationship – validly married in home country – financial, household and social/cultural aspects of relationship and nature of commitment while mostly living in different countries – extensive additional evidence provided to tribunal – financial assistance, communication and sponsor’s travel, temporary residence and role as step-parent – disruption by COVID travel restrictions – supporting statements from members of both families – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 May 2021 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 19 February 2020 on the basis of his relationship with his sponsor, 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). 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.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211(2) and subsequently cl.309.221 because they were not satisfied that the couple were in a genuine spousal relationship.
The review applicant appeared before the Tribunal on 13 September 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Jennifer McLean, friend of the sponsor.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the couple is in a genuine spousal relationship as defined by section 5F of the Act.
In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and the importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.
The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.
Whether the parties are in a spouse or de facto relationship
Cl.309.211(2) and cl.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.
‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as husband and wife to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s.5F(2)(a)-(d). In forming an opinion 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.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The delegate accepted a Marriage Certificate as evidence that the couple were legally married. The Certificate registration is dated 10 September 2019, issued in Egypt. The Tribunal also accepts this evidence and has viewed a certified English language copy of the document. 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).
The Tribunal notes a valid Divorce Certification pertaining to the visa applicant dated August 2019, issued in Egypt. The Divorce is declared to have taken place in the traditional and legally accepted manner on 1 January 2015.
The Tribunal notes a valid Divorce Certification pertaining to the review applicant/sponsor dated 1 May 2015 and issued in Australia.
Are the other requirements for a spousal relationship met?
In forming an opinion whether they are in a spousal relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects, 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 which is attached to this decision.
The applicant lodged a valid application for a Class UF Partner (Provisional) and BC Partner (Migrant) visa on 19 February 2020 on the grounds of being in a spousal relationship with an Australian citizen, Ms Debra Mary Bell.
The visa applicant is a male Egyptian national by birth, who has declared 1 previous marriage relationship and subsequent divorce.
The sponsor is an Australian citizen, previously twice married and subsequently divorced in both instances.
The Department has declared the DOB of the sponsor and the DOB of the applicant. The Tribunal accepts this as fact and therefore it is agreed that both parties have met personally since turning 18.
Both the visa applicant and the sponsor are therefore greater than 18 years of age.
It is claimed that the couple first met each other online via Facebook Messenger 1 January 2015. The sponsor travelled to Egypt on 3 July 2015 and first met the applicant in person.
The couple claim to have committed to a life together and marriage in November 2017. The couple married 10 September 2019 in Egypt.
The departmental travel records verify the claimed travel and travel applications subsequently refused of both parties.
It was asserted and it was accepted by the Tribunal, that the sponsor has travelled to Egypt 5 times including the first meeting. The visa applicant has not travelled to Australia. The Covid-19 pandemic has further complicated travel with the border closures and the high infection rate in Egypt.
The Tribunal has considered the documentary evidence provided to the Department and the Tribunal. The Tribunal has in addition had the benefit of receiving considerably more evidence from the sponsor and the visa applicant than provided to the delegate.
The following evidence was provided to the Department and subsequently to the Tribunal and has been read and carefully considered by the Tribunal.
- IMMI Acknowledgement of Application Received - BCC2020 490913 - 1485637665 - HUSSEIN MOHAMED, ISLAM MOHAMED.PDF
- Covering letter (EMAIL) - POINT_OF_CONTACT BONNIE THURECHT - (migration agent).HTML
- s257A (s40) Requirement to Provide Biometrics - BCC2020 490913 - 1485637665 - HUSSEIN MOHAMED, ISLAM MOHAMED.PDF
- Covering letter (EMAIL) - POINT_OF_CONTACT BONNIE THURECHT - (migration agent).HTML
- Form 1243i Your personal identifying information.PDF
- Other (specify)-System Generated PDF File-EGOPBOXPAN_application.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Military Service Record-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Telephone Bill-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Telephone Bill-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Travel Tickets-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Telephone Bill-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Telephone Bill-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Travel Tickets-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Travel Tickets-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Travel Tickets-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Travel Tickets-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Divorce Decree Absolute-FV-Partner-APP-TEMP.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Divorce Decree Absolute-FV-Partner-APP-TEMP.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Divorce Decree Absolute-FV-Partner-APP-TEMP.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Divorce Decree Absolute-FV-Partner-APP-TEMP.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Divorce Decree Absolute-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Financial Statements - Joint-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Statement regarding future plans-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Marriage registration document-FV-Partner-APP-TEMP.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Marriage registration document-FV-Partner-APP-TEMP.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Marriage registration document-FV-Partner-APP-TEMP.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Birth Certificate-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Passport-FV-Partner-APP-TEMP.JPG
- BELL, DEBRA MARY, 14DEC1969-Passport-FV-Partner-APP-TEMP.JPG
- BELL, DEBRA MARY, 14DEC1969-Divorce Decree Absolute-FV-Partner-APP-TEMP.JPG
- BELL, DEBRA MARY, 14DEC1969-Title Deed-FV-Partner-APP-TEMP.JPG
- BELL, DEBRA MARY, 14DEC1969-Title Deed-FV-Partner-APP-TEMP.JPG
- BELL, DEBRA MARY, 14DEC1969-Title Deed-FV-Partner-APP-TEMP.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Form 888 Statutory declaration by a supporting witness in relation to a Partner or Pro.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Form 888 Statutory declaration by a supporting witness in relation to a Partner or Pro.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Form 888 Statutory declaration by a supporting witness in relation to a Partner or Pro.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Form 888 Statutory declaration by a supporting witness in relation to a Partner or Pro.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Form 888 Statutory declaration by a supporting witness in relation to a Partner or Pro.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Form 888 Statutory declaration by a supporting witness in relation to a Partner or Pro.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Form 888 Statutory declaration by a supporting witness in relation to a Partner or Pro.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Form 888 Statutory declaration by a supporting witness in relation to a Partner or Pro.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Form 888 Statutory declaration by a supporting witness in relation to a Partner or Pro.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Form 888 Statutory declaration by a supporting witness in relation to a Partner or Pro.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Form 888 Statutory declaration by a supporting witness in relation to a Partner or Pro.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Form 80 Personal particulars for character assessment-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Form 80 Personal particulars for character assessment-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.PDF
- BELL, DEBRA MARY, 14DEC1969-Other (specify)-Debs Letter.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Internet Account Records-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Internet Account Records-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Internet Account Records-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Internet Account Records-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Internet Account Records-FV-Partner-APP-TEMP.JPEG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Internet Account Records-FV-Partner-APP-TEMP.JPEG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Internet Account Records-FV-Partner-APP-TEMP.JPEG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Internet Account Records-FV-Partner-APP-TEMP.JPEG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Internet Account Records-FV-Partner-APP-TEMP.JPEG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-ISLAM DANGER AND NO HOME SOON 1.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-ISLAM IN DANGER 18 SEP 2020 COMPRESSED.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Overseas Police Clearance - National-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-Debby children illnesses.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-Debby ambulance trip 16 July 2020.jpg-FV-Partner-APP-TEMP.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-MONEY AND CONTACT COMPRESSED.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-ISLAM ALL IMMI LODGED. pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-Islam request.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-ISLAM DANGER AND NO HOME SOON 1.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-5TH TRAVEL REQUEST. pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-ISLAM RESERVATION.pdf-FV-Partner-APP-TEMP.PDF
- Email rcvd MA 14 10 20 - PRIORITY PROCESSING APPROVED ON PHONE LAST WEEK.MSG
- BELL, DEBRA MARY, 14DEC1969-Australian Federal Police Clearance-FV-Partner-APP-TEMP.JPG
- PRIORITY PROCESSING APPROVED ON PHONE LAST WEEK.MSG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-DEBBY ANZ BANK STOP ISLAM. pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-PARTNER 309 SUBMISSION.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-ISLAM UPDATE 5 NOV 2020.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-EGYPT CURRENT STATE.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-Egypt 2020 Crime & Safety Report.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-FAST APPROVALS PROOF -compressed.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-DEBBY MENTAL HEALTH. pdf-FV-Partner-APP-TEMP.PDF
- BELL, DEBRA MARY, 14DEC1969-Other (specify)-DEBBY COUNSELLING STARTED. jpg-FV-Partner-APP-TEMP.JPG
- BELL, DEBRA MARY, 14DEC1969-Other (specify)-DEBBIE ANTIDEPRESSANTS. jpg-FV-Partner-APP-TEMP.JPG
- BELL, DEBRA MARY, 14DEC1969-Other (specify)-DEBBY COUNTRY HEALTH LETTER. pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-Islam health cover. jpg-FV-Partner-APP-TEMP.JPG
- Email rcvd MA 19 11 2020 - Priority Processing - NO RESPONSE STILL.MSG
- BELL, DEBRA MARY, 14DEC1969-Other (specify)-DEBBY URGENT HEALTH LETTER.pdf-FV-Partner-APP-TEMP.PDF
- BELL, DEBRA MARY, 14DEC1969-Other (specify)-62745533790__0A17F49C-C41A-4088-BEB3-AA79C587925E.jpeg-FV-Partner-APP-TEMP.JPEG
- Email rcvd MA 20 11 2020 - Urgent Escalation - EGOPBOXPAN Islam Mohamed, Hussein Mohamed.MSG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Military Discharge Papers-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Marriage registration document-FV-Partner-APP-TEMP.PDF
- Application in progress - BCC2020 490913 - 1485637665 - HUSSEIN MOHAMED, ISLAM MOHAMED.HTML
- Self-Harm 1.3.21.PNG
- Security Event Report - EVT-814291 SEC=Official.MSG
- HPRM SELF-HARM - Subclass 309 - Urgent processing request - RID 1485637665.MSG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-EXPEDITION PROCESS NO 00958032-compressed.pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Photograph - Other-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-DEB ISLAM HOUSEHOLD DUTIES PROOF. pdf-FV-Partner-APP-TEMP.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Marriage Certificate-FV-Partner-APP-TEMP.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Marriage Certificate-FV-Partner-APP-TEMP.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Marriage Certificate-FV-Partner-APP-TEMP.JPG
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Marriage Certificate-FV-Partner-APP-TEMP.JPG
- BELL, DEBRA MARY, 14DEC1969-Passport-FV-Partner-APP-TEMP.JPG
- BELL, DEBRA MARY, 14DEC1969-Other (specify)-deb Islam’s friend Statutory Declaration 20201216.pdf-FV-Partner-APP-TEMP.PDF
- BELL, DEBRA MARY, 14DEC1969-Other (specify)-MUM STAT DEC P1-merged.pdf-FV-Partner-APP-TEMP.PDF
- BELL, DEBRA MARY, 14DEC1969-Other (specify)-PARTNER 309 SUBMISSION.pdf-FV-Partner-APP-TEMP.PDF
- s56 Request for More Information - BCC2020 490913 - 1485637665 - HUSSEIN MOHAMED, ISLAM MOHAMED.PDF
- Covering letter (EMAIL) - POINT_OF_CONTACT BONNIE MAREE THURECHT - (Migration Agent).HTML
- s56 Request for More Information - BCC2020 490913 - 1485637665 -Request Checklist and Details.pdf.PDF
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-Islam contact phone. docx-FV-Partner-APP-TEMP.DOCX
- HUSSEIN MOHAMED, ISLAM MOHAMED, 18JAN1989-Other (specify)-Islam work phone number. docx-FV-Partner-APP-TEMP.DOCX
- Islam's full interview.DOCX
- IMMI Refusal Notification - BCC2020 490913 - 1485637665 - HUSSEIN MOHAMED, ISLAM MOHAMED.PDF
- Covering letter (EMAIL) - POINT_OF_CONTACT BONNIE MAREE THURECHT - (Migration Agent).HTML
The Tribunal has read and carefully considered the following evidence provided to it prior to the hearing.
- Notification of refusal of application for a Partner (Provisional) (class UF) (subclass 309) / Partner (Migrant) (class BC) (subclass 100) visa and Decision Record dated 05 May 2021
- Letter from the Sponsor’s employer, Country Health Connect dated 31 May 2021
- Photographs depicting the Applicant engaged in his course of employment , undated.
- Transfers from the Sponsor’s bank account(s) to the Applicant dated across 2020 and 2021.
- Transfers from the Sponsor’s bank account(s) to the Applicant’s family across 2018-2020
- Household utilities and BUPA Private Health Insurance in parties’ joint names, bill dated 29 April 2021.
- Copies of rental agreements where the Applicant and the Sponsor have resided together whilst in Egypt, dated 29 July 2021 and 21 September 2021.
- Copies of the Centrelink documents as evidence of the parties’ relationship, dated 20 December 2020.
- Attempts made by the Sponsor to obtain a tax file number (TFN) for the Applicant dated 16 April 2021.
- Copies of messages and screenshots of interactions between the Sponsor and the Applicant’s family members across various dates.
- Copies of messages and screenshots of interactions between the Applicant and the Sponsor’s family members across various dates.
- Photographs of the Sponsor in the company of the Applicant and his family and friends whilst in Egypt
- Egyptian Marriage Certificate between Applicant and Sponsor dated 10 September 2019
- Copies of the Applicant’s and Sponsor’s respective Divorce Orders
- Medical information pertaining to the Sponsor’s daughter, Addison dated 1 May 2019 and 9 August 2019 respectively.
- Medical information pertaining to the Sponsor’s daughter, Ashlan across various dates.
- Photographs of the Sponsor in the company of the Applicant whilst in Egypt
- Statements from members of the Applicant’s family in support of the genuine and continuing relationship between the Applicant and Sponsor all dated 4 September 2022.
- Facebook posts depicting the Applicant’s and Sponsor’s time together across various dates
- Messages between the Sponsor and the Applicant’s family and friends on social media applications such as Facebook and Whatsapp.
- Photos of video calls between the Sponsor and her children and her family and friends and the involvement of the Applicant in those communications.
- Photos and Facebook posts depicting the Applicant’s and Sponsor’s time together
- Further photographs and Facebook posts depicting the Applicant’s and Sponsor’s time together
- Further photographs and Facebook posts depicting the Applicant’s and Sponsor’s time together
- Certificate of No Impediment to Marriage dated 07 November 2017
- Letter from Tokio Marine Nichido (travel insurance company) and Correspondence from Louran Hospital in Alexandria, Egypt dated 4 November 2017
- Marriage certificate between the Applicant and the Sponsor, photographs of the marriage celebrations, messages sent and received by the parties on the day of their wedding
- Evidence of the Sponsor’s flights to Egypt in July 2021 dated 20 July 2021
- Evidence of the Sponsor’s travel exemption dated 10 June 2021
- Evidence of the parties’ cohabitation in Egypt from July 2021 to current
- Copies of the Sponsor’s Egyptian foreign residency card and national identification card.
- Examples of emails, messages, photographs, letters and cards provided to and from the Applicant and Sponsor.
- Three (3) statutory declarations from individuals supporting the parties’ relationship across various dates.
- Evidence of the parties’ respective family and friends interacting with one another over time and on a regular basis on various dates.
- Photographs of the Applicant and Sponsor’s tattoos with each other’s names tattooed on their arms

The Tribunal has considered all aspects of the relationship.
The Tribunal has determined that there is a demonstrated clear mutual commitment to a shared life together. This is initially indicated through the fact the couple are married and they have declared their marriage to a government body in both Egypt and Australia. It is also indicated through the fact that despite being substantially separated for much of the past 8 years, the review applicant and visa applicant appear to have remained mutually committed to each other. It is noted that they have lived together for 22 months in Egypt since commencing their relationship which culminated in marriage. They assert their love for each other and claim it has survived the time they have been forced to spend apart. It appears from the verbal statements and an enormous quantity of communication logs submitted; the ongoing regular utilisation of electronic communication technology has been important in achieving this as an adjunct to regular visitation by the sponsor. This was confirmed by the witness to the satisfaction of the Tribunal.
The Review Applicant and Primary Visa Applicant have displayed a relatively consistent understanding of each other’s lives and show a genuine mutual interest in one another. They appear to support one another in all aspects of their lives, that is, financially, socially, and emotionally in-spite of the limitations imposed by distance. This was reinforced by the Statutory Declarations provided to both Department and then to the Tribunal as listed in paragraphs 25 and 26 of this decision.
The relationship is in the view of the Tribunal both genuine and continuing. This was clearly and unambiguously reinforced by the testimony of the review applicant’s mother and the visa applicant’s daughter.
There is no evidence before the Tribunal that the visa applicant and the review applicant have any intention to live separately apart on a permanent basis. The current separation was imposed upon them by the confluence of the Covid 19 pandemic and the visa refusal by the Department.
Financial Aspects of the Relationship
In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered joint asset ownership, joint liabilities, pooling of financial resources, legal obligations and the sharing of daily household expenses.
In relation to any joint ownership of real estate or other major assets, the Tribunal has determined that the couple do not jointly own any major assets or real estate. This is not in the opinion of the Tribunal unusual for a couple of moderate means, currently housed in two different countries, planning to live together in Australia.
The Tribunal accepts the verbal evidence proffered that there is a jointly owned very modest flat in Egypt which was paid for by the sponsor.
It accepts as fact that the visa applicant is included in the Australian issued family Health Care – BUPA – card sighted, membership number observed.
It is noted that the Telstra Account is held in joint names and therefore incurs joint liability.
The Tribunal accepts there is substantial documented evidence the sponsor has provided considerable financial assistance to the visa applicant and his family due to the extremely challenging circumstances and infection rates / deaths in Cairo during the Covid-19 pandemic. The applicant is a restaurant employee and was unable to obtain work during the pandemic. The sponsor was the principal means of support during this time. It is fair to contend that their support for each other as a family strengthens the genuine claim of their relationship as the Tribunal can conclude that the intentions of each party are not hinged on whatever financial gain one might have over the other.
The reliance financially of the applicant upon the sponsor during the pandemic has been corroborated by Statutory Declarations and statements. This was canvassed at the hearing and the Tribunal was convinced of the genuineness of the responses.
The Tribunal received no evidence that the couple have any major joint liabilities such as a mortgage in either of their home countries.
The Tribunal has examined the Tenancy agreement documents in both names during the sponsor’s residence in Egypt.
The Tribunal has accepted the evidence from the couple that the visa applicant and sponsor are currently saving for their life together when he relocates to Australia and joins her. Claims have been made that suggest some financial forward planning has been undertaken by the couple which were explored at hearing. There is an initial plan for the applicant to undertake a role in a local restaurant in the sponsor’s town. A longer-term plan is to establish a restaurant. The Tribunal accepts the verbal assertions that employment has been obtained for the applicant upon his arrival in the community.
Whether one person in the relationship owes any legal obligation in respect of the other. The Tribunal has determined that aside from the usual legal obligations associated with a marriage, the couple have not provided any evidence to indicate any additional legal obligations, nor is there any evidence before it from any source to indicate otherwise.
The Tribunal accepts as reasonable the assertion made by the sponsor that the principal recipients of proceeds distributed in the event of her death, according to her will, are her children and then her husband.
The basis of any sharing of day-to-day household expenses. The Tribunal acknowledges that the couple have lived apart for a considerable period of time post marriage and will continue to do so until the review applicant is able to bring her husband to their home in Australia. Therefore, there is little verifiable evidence of day to day sharing of household expenses aside from the claimed joint financial contributions made by the couple whenever they have been co-located in Egypt. This was explored to the satisfaction of the Tribunal during the hearing.
The Tribunal places substantial weight on the evidence in support of the financial aspects of the relationship, whilst accepting the limitations imposed by the ongoing geographic separation.
Nature of the Household
In relation to the nature of the household aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.
Any joint responsibility for the care of children. The Tribunal notes that the couple have not commenced a family as a couple. The current family circumstances of both parties was canvassed at the hearing. The visa applicant has a young child from his first wife in Egypt and he has custody. The Sponsor has 3 children in Australia, one of whom is an adult living independently. It appears from written and verbal statements the couple individually made, that future planning has not been focussed upon having children as a couple. It accepts and is sympathetic to the fact that there are biological and social realities associated with their aging.
Electronic communication between the couple and their respective family groups and friends appear to indicate a level of co-parenting or mutual involvement in their respective families. Cogent examples were provided by both the sponsor and the witness.
The living arrangements of the visa applicant and the sponsor are clearly not of their own making. The couple have principally been separated by geography post their marriage for substantial periods of time. However, when the opportunity arose for cohabitation, it has occurred. This was as stated previously corroborated by written witness statements, Statutory Declarations and Departmental travel records. It is noted that the couple have been able to cohabit on several occasions, (5 trips to Egypt by the sponsor) for a total of 22 months. A range of Statutory Declarations and lease documents have been furnished in support. It is worthy of note that had Covid related travel restrictions over 2 years not been in place and the Department had permitted travel exemptions for the sponsor, they would have cohabited for even greater periods post marriage.
In addition, the Tribunal has been furnished with Temporary Residence Registration documents for Egypt associated with the sponsor. They indicate the sponsor has a 3-year Foreign Residency permit which expires in mid-2024. The Tribunal accepts the evidence as accurate and has no information before it which would indicate the contrary view.
Any sharing of responsibility for housework. The Tribunal notes some opportunity has existed to share household responsibilities during their cohabitations in rented accommodations in Egypt. It is not possible to verify this other than the substantial photographic evidence presented prior the hearing, in conjunction with verbal testimony. The Tribunal believes it reasonable to accept the various statements in relation to these claimed facts as accurate.
The Tribunal places substantial weight on the cumulative evidence presented in relation to the nature of the household due to the extraordinary external circumstances inflicted upon the couple.
Social Aspects
In relation to the social aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.
The review applicant and primary visa applicant claimed that they present themselves to society as a married couple and as a couple in a committed relationship. The Tribunal has formed the view that this is reasonable to accept from the fact that the review applicant and primary applicant have provided a substantial album of photographic evidence of themselves in a diverse range of social settings and activities, in the presence of immediate family and friends as well as their travel pictures. Many of the photographs are of a casual and clearly un-staged nature and quite intimate in their composition.
This was further reinforced by their Statements, Statutory Declarations and written statements made by close friends and the family members of the couple. The Tribunal places substantial weight upon the statements made by each of the couple’s family members. The Tribunal is reassured by the fact that the majority of the Statutory Declarations and subsequently updated current personal statements, indicate that the visa applicant is well known through multiple social interactions to the declarants
It is noted that the couple have been diligent in spending as much time together as was possible when considering their work and business schedules combined with personal responsibilities. Once again, the travel hiatus resulting from Covid-19 restrictions is noted, as is the plethora of very consistent electronic communication evidence.
In the Tribunal’s past experiences of this culture, if the family and wider community did not in fact view the couple as married and in a sustained relationship, they would have been shunned for having an affair out of wedlock. This would be particularly poorly viewed by an in situ traditional Egyptian community. In addition, a child is involved in Egypt, so the shame of inappropriate cohabitation would be reflected upon them as well as the extended family units.
The Tribunal places substantial weight upon the cumulative evidence provided in support of the social aspects of their relationship in combination with the geographic circumstances of the relationship participants.
Nature of the Commitment
In relation to the nature of the persons’ commitment to each other, the Tribunal has considered the following.
The duration of the relationship. The Tribunal was presented with a range of written testimony, clearly showing that the relationship evolved over a substantial time-period from their initial meeting post an online meeting. Major issues such as when the relationship commenced, the wedding date, the subsequent living arrangements over time and the understanding of the respective families and friends were explored in written evidence and elaborated upon in verbal evidence given during the hearing. The desire to see the couple reunited and have a happy family life together was made clear in the written Statutory Declarations and statements. This substantial body of evidence has all been detailed and cross-referenced appropriately with additional written evidence.
The length of time they have lived together. As previously stated, the couple have not lived together for as much time as desired, due to the various circumstances the Tribunal accepts are out of their control. It accepts that they have lived together as man and wife post the marriage, for as many periods of time available to them and more than might be expected in a relationship punctuated by a global pandemic. The total time spent cohabiting is approximately 2 years.
The degree of companionship and emotional support that the persons draw from each other. The Tribunal was convinced by the assertions of the couple, which were supported by the various Statutory Declarations/statements and written witness testimony that the relationship is mutually emotionally nourishing. The demeanour of the visa applicant the sponsor coupled with family and friends demonstrated photographically to the Tribunal the emotionally genuine nature of the relationship and the couple’s desire to progress their lives together. It again notes that both members of this couple are mature adult people in the midst of their adult lives. Whilst the Tribunal accepts that the life challenges coupled with the responsibility of successfully rearing children creates some additional challenges.
The Tribunal is in no doubt that substantial mutual emotional support is provided to the visa applicant and the sponsor and accepts that this is likely to continue, into the future when they reunite. It is noted the sponsor appears to have provided substantial emotional support for his wife whilst she has been dealing with a series of medically based family challenges.
The Tribunal notes the apparent concerns the delegate had during interview with the visa applicant waiting for several years prior to divorcing his first wife. The explanation given relating to his need to be certain his child from that marriage would be appropriately cared for resonates. It is not reasonable to assume such an assessment would be perfunctorily undertaken. The Tribunal in addition understands and accepts the need to endow his ex-wife with a financial settlement. This is a common practice and not surprisingly would be difficult to achieve in a relatively low-income country. There are considerable parallels within our own family law legislation.
The Tribunal notes that the visa applicant has taken responsibility for his daughter as her mother is now deceased under unfortunate circumstances. The explanation of those circumstances provided to the Tribunal during the hearing adds further weight to the original claim, as to the need to ensure the applicant’s child would be safe with her mother if she had custody.
The Tribunal determines the evidence provided to demonstrate regular ongoing communication between the visa applicant and the sponsor further strengthens the body of evidence supporting the genuineness of this relationship. Substantial bodies of evidence were presented to demonstrate to the Tribunal that a range of communication devices and methodologies are regularly employed.
The Tribunal once again refers to the fact that the couple have been attempting to start a life together for many years, this includes 4 years following their Marriage. This demonstrates commitment. As does the unambiguously demonstrated involvement of the visa applicant’s child and the stepparent role undertaken by the sponsor. Once again, the Tribunal cannot but reflect positively on the nearly 2-years they have lived together in the most trying of circumstances. Such resilience is a substantial indicator of the genuineness of their relationship.
The Tribunal places substantial weight upon the cumulative evidence provided in support of the couple’s commitment to each other.
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.
Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 309 visa.
DECISION
The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 309 visa:
·cl 309.211 of Schedule 2 to the Regulations
·cl 309.221 of Schedule 2 to the Regulations
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).

[2023] AATA 3086

13 September 2023

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