Chamma (Migration)

[2024] AATA 3171

Chamma (Migration) [2024] AATA 3171 (29 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Baraa Chamma

VISA APPLICANT:  Mr Anas Moukdad

CASE NUMBER:  2309281

DIBP REFERENCE(S):  BCC2021/1244515

MEMBER:Margie Bourke

DATE:29 August 2024

PLACE OF DECISION:  Melbourne

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 and cl.309.221 of Schedule 2 to the Regulations.

Statement made on 29 August 2024 at 2:14pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – review applicant’s travels to Lebanon – money transfers – periods of cohabitation – detailed statements of social recognition – evidence of communication – family health issues – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 June 2023 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 15 June 2021 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, which in this case is the visa applicant.

3. 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 that the visa applicant had provided sufficient documentary evidence or information to demonstrate that he was the spouse of the sponsoring partner within the meaning of s.5F(2) of the Act.

4. The Tribunal has considered the information that was provided to the Department, and the Department’s decision record dated 17 June 2023. The Tribunal has also considered the further evidence and information provided to the Tribunal that was not available to the Department. The Tribunal has decided it can make a decision favourable to the applicant based on the information available to it, without proceeding to a hearing, pursuant to s.360(2)(a) of the Act.

5. The following are the written reasons the Tribunal has concluded that the matter should be remitted back to the Department for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

   Whether the parties are in a spouse or de facto relationship

6. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl.309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

7. ‘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            reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP[2017] FCAFC 206.

8. Initially the review applicant and visa applicant were invited to a hearing, but the Tribunal also invited the review applicant to provide further submissions, including signed statements from the review applicant and the visa applicant about the current circumstances of their relationship, and signed statements from members of their family, members of the community and friends and colleagues. After considering the additional information provided by the review applicant, the Tribunal decided it could make its decision on the information available.

9. The review applicant had provided the Tribunal (and the Tribunal notes had also provided the Department) with extensive folios of untranslated chat records and logs. The Tribunal advised the review applicant that it could not consider the content of information provided in a language other than English that was not accompanied by a certified translation.

10. The review applicant and visa applicant had provided the Department with documents including a copy of their marriage certificate and other identity documents, a relationship statement from the review applicant dated 21 May 2021, the application and sponsorship forms, a collection of photos, including wedding photos, and three statutory declarations from the review applicant’s mother, the review applicant’s best friend and the best friend’s mother (the latter two confirming they attended the review applicant’s and the visa applicant’s Islamic marriage ceremony in Lebanon). The review applicant and visa applicant also provided the Department with extensive folios of untranslated chat records and logs and screenshots of call records.

11. The review applicant provided the Tribunal with a statement from the visa applicant addressing the criteria set out in the Department’s decision record, confirmation of travel by the review applicant to Lebanon from 15 January 2024 returning 26 February 2024, copies of money transfers from the review applicant to the visa applicant (with the visa applicant’s surname spelt ‘Meckdad’ on the Western Union receipts), and a collection of photos, most of which had been previously provided to the Department. The review applicant also provided the Tribunal with the extensive folios of untranslated chat records, and screenshots of call records many of which were illegible.

12. The review applicant also provided the Tribunal with signed statements from the visa applicant’s brother Youssef Mokdad dated June 2024, the visa applicant’s sibling Khouzayma Mekdade dated 18 August 2024, the visa applicant’s friend from childhood Ammar  Al Merekbawi dated 17 August 2024, the visa applicant’s cousin Isamil Almasri dated 11 August 2024, and a cousin of both the review applicant and the visa applicant Mekdad Moujahed dated 13 August 2024. All these statements were accompanied by photo identification documents in the form of passports. The review applicant also provided two signed statements from the visa applicant’s sister (also the cousin of the review applicant) Wissal Moukdad dated 25 August 2024 and from the visa applicant’s brother-in-law Ahmad El Bikkai dated 25 August 2024. These two signed statements did not have photo identification documents attached, and the statements included a final paragraph confirming the authors did not have a passport.

13. The review applicant also provided a statutory declaration from her best friend Dahouk El-Ghourani dated 19 August 2024, a statutory declaration from a friend of the review applicant since high school Siaunofoilalon Kepu dated 21 August 2024, a statutory declaration from a cousin of the review applicant Suzane Chamma dated 20 August 2024 and a statutory declaration from a friend of the review applicant Dr Thamer Hanoun dated 23 August 2024. All statutory declarations had photo identification attached, either in the form of a driver’s licence or a passport.

14. The review applicant and visa applicant also provided signed statements dated 28 August 2024 both entitled Relationship Status.

15. The statements and statutory declarations provided are detailed, disclose a knowledge of the relationship between the review applicant and the visa applicant, and many included anecdotes and specific details of the relationship. The Tribunal finds the statements and statutory declarations provided are significant evidence of the relationship between the review applicant and the visa applicant, and are of assistance to the Tribunal in assessing whether the relationship between the review applicant and the visa applicant meets the relevant requirements.

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. Based on the translated marriage certificate, the Tribunal is satisfied that the review applicant and visa applicant were married in Lebanon on 7 November 2017, and the marriage was registered on 24 November 2017. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).

    Are the other requirements for a spouse relationship met?

17. Financial aspects of the relationship: – the Tribunal is satisfied that the parties do not jointly own real estate or other major assets. The Tribunal is satisfied that the parties do not have joint liabilities. The Tribunal is satisfied that the parties do not pool financial resources, particularly in relation to major financial commitments, although the Tribunal notes that the review applicant has sent money to the visa applicant in the form of money transfers through Western Union. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. The Tribunal accepts that when the review applicant has travelled to Lebanon and spent time with the visa applicant they have shopped together and shared their spending. As the review applicant and visa applicant reside in separate countries, there is no evidence of the basis of any sharing of day-to-day household expenses, excluding the time that they have spent together in Lebanon.

18. The evidence of the financial aspects of the relationship is insufficient to indicate that the relationship of the review applicant and the visa applicant would meet any of the requirements in s.5F(2).

19. Nature of the household: – the Tribunal is satisfied that the parties do not have joint responsibility for the care and support of children. The Tribunal is satisfied that the parties have lived together as husband and wife since their marriage on 7 November 2017. The review applicant returned to Australia on 10 November 2017, and has since that date spent approximately four weeks in Lebanon in 2019, eight weeks in Lebanon in 2022 and six weeks in Lebanon in 2024, a total of 18 ½ weeks. The Tribunal is satisfied the living arrangements of the review applicant and visa applicant are that they reside as husband and wife when they have been together in the same country. The Tribunal is satisfied that the parties share responsibility for household duties when residing together, including cooking meals together, cleaning the dishes and doing the laundry; the Tribunal accepts that the review applicant taught the visa applicant how to cook, how to iron clothes, and how to use a washing machine.

20. The evidence of the nature of the household is limited, but indicates that the parties are in a genuine and continuing relationship, and lived together, and not separately and apart, on a permanent basis, at both the time of application and at the time of decision.

21. Social aspects of the relationship: – the Tribunal is satisfied that the review applicant and visa applicant represent themselves to other people, including close family, extended family and friends, as being married to one another. The Tribunal is satisfied that the opinion of the parties’ friends and acquaintances of their relationship is that it is very close, loving and supportive. The Tribunal is satisfied that the basis on which the review applicant and the visa applicant plan and undertake joint social activities is restricted by the fact they reside in different countries. The Tribunal is satisfied that the review applicant and visa applicant are in regular and constant communication with each other on more than a daily basis, and include family and friends in their conversations and communications. The Tribunal is satisfied that the parties plan for the review applicant to travel to Lebanon to spend time together, which is restricted by the review applicant’s employment or business commitments.

22. The evidence of the social aspects of the relationship indicates that the parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, are in a genuine and continuing relationship, and lived together, and not separately and apart, on a permanent basis, at both the time of application and at the time of decision.

23. Nature of the persons’ commitment to each other: – the Tribunal is satisfied that the review applicant and the visa applicant were married on 7 November 2017, and at the time of application on 15 June 2021 they had been married for 3 ½ years, and had lived together for 4 ½ weeks since the marriage. The Tribunal is satisfied that at the time of this decision, the review applicant and visa applicant have been married for six years and nine months, and have lived together for a total of 18 ½ weeks. The Tribunal is satisfied based on all the statements before it that the review applicant and visa applicant provide and draw a high degree of companionship and emotional support to and from each other. The Tribunal is satisfied that the review applicant and visa applicant have faced some difficulties during their relationship, including health difficulties of their relatives, and providing support and care to each other from a distance. The Tribunal is satisfied that the review applicant and the visa applicant see their relationship as long-term, and their future plans include having children together, travelling together and buying a home together.

24. The evidence of the nature of the persons’ commitment to each other indicates that the review applicant and the visa applicant have a mutual commitment to a shared life as a married couple to the exclusion of all others, they are in a genuine and continuing relationship, and they lived together, and not separately and apart, on a permanent basis, both at the time of application and at the time of decision.

25. Conclusion: – the Tribunal has considered the circumstances of the relationship and all the matters set out in reg 1.15A(3). The Tribunal is satisfied that by the time the application and at the time of decision, the review applicant and the visa applicant had a mutual commitment to a shared life as a married couple to the exclusion of all others, were in a genuine and continuing relationship, and lived together, and not separately and apart, on a permanent basis. The Tribunal therefore is satisfied that the relationship between the review applicant and the visa applicant meets the requirements of s.5F(2)(b), (c) and (d).

26. For the above reasons the Tribunal finds that the review applicant and the visa applicant are in a spousal relationship within the meaning of s.5F(2).

27. 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.

28. Therefore the visa applicant meets the requirements of cl.309.211 and cl.309.221.

29. 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

30. 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 and cl.309.221 of Schedule 2 to the Regulations

    Margie Bourke
    Senior 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).