Cingoz (Migration)

Cingoz (Migration) [2023] AATA 763 (31 January 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Cengiz Cingoz
VISA APPLICANT:  Ms Waed Jawad
REPRESENTATIVE:  Mr Nazim El-Bardouh
CASE NUMBER:  1902200
DIBP REFERENCE(S):  BCC2018/1365303
MEMBER:Brygyda Maiden
DATE:31 January 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

Statement made on 31 January 2023 at 6:08pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – subclass 309 – insufficient evidence to demonstrate that the visa applicant is the spouse or de facto partner of the review applicant – visa applicant has neither met nor spoken to the review applicant’s children – the review applicant is unaware of the visa applicant’s hobby – limited evidence of emotional support – not satisfied that the review and visa applicant have a commitment to each other consistent with a genuine and continuing relationship – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5F, 65
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221
CASES
He v MIBP [2017] FCAFC 206
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
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 21 January 2019 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Migration Act 1958 (Cth) (the “Act”).
The visa applicant, who is 38, applied for the visa on 22 March 2018 based on her relationship with her sponsor, 53, 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 (Cth) (the “Regulations”). The primary criteria must be satisfied by at least one applicant.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211(2) and 309.221 as the delegate considered that there was insufficient evidence to demonstrate that the visa applicant is the spouse or de facto partner of the review applicant. In the application for review to the Tribunal lodged on 31 January 2019, the review applicant attached a copy of the delegate’s decision.
On 5 September 2022, the representative wrote to the Tribunal requesting the priority in the processing of this matter. The reasons given related to the visa applicant suffering from [a medical condition]. A medical certificate dated 8 August 2022 [was] provided in support. A medical report dated 9 August 2022 from the visa applicant’s doctor was also submitted and indicated that the visa applicant had a “major depressive illness” and her major stressors related to her inability to join her husband in Australia due to the COVID crisis, [reason deleted] and “[s]ocial and medical stress in Lebanon secondary to the current political crisis.” The doctor recommended that the visa applicant join the review applicant in Australia as soon as possible to relieve her symptoms and get adequate medical and supportive care.
On 7 October 2022, the priority request refusal occurred prior to this matter being constituted to the Tribunal Member and was exercised by a delegated Tribunal officer on the following grounds:
Without minimising your set of circumstances, the Tribunal accepts that the details of your situation is of a compelling nature but I am not satisfied that it is unique when compared to other applicants within the partner caseload who are separated from their spouse; are distressed by long lead times; who are suffering bouts of uncertainty and feelings of hopelessness with regards to their future prospects; and who are experiencing unfavourable health conditions as identified by their relevant medical practitioners. It would therefore be remiss of the Tribunal to upscale the prioritising of your matter before other applicants who share your claims and who lodged prior to you.
The review applicant appeared before the Tribunal on 30 November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The hearing was conducted entirely virtually.
The review applicant was represented in relation to the review by a legal practitioner. The review applicant gave oral evidence in English and the Tribunal was assisted by an interpreter in the Arabic (Lebanese) and English language for the visa applicant, though there were times when the visa applicant gave evidence in English.
In the introduction to the hearing the Tribunal made clear that the Tribunal would ask questions and discuss any concerns in relation to the matter, but when the Tribunal was discussing these concerns or asking these questions, the Tribunal had not yet made up its mind about the matter. Toward the end of the hearing (as well as throughout the hearing), for procedural fairness reasons the Tribunal expressed its concerns to the review applicant to afford the review applicant and the representative the opportunity to respond to those concerns. The representative provided oral submissions in relation to the Tribunal’s concerns (which was often repeating the oral evidence already given by the parties at the hearing). In relation to the last concern which was the visa applicant not knowing the street name of the review applicant’s home, the representative, after stating that English was not the visa applicant’s first language, she did know the area name, number of bedrooms and that it was a rental property had the following exchange with the Tribunal (at approximately 42:13 of the third audio file):
Representative:    Member I do I do see where you are coming from I do realise um that you think that is some sort of relationship just to gain a visa um but um
Tribunal:            Just to be clear Mr Representative I haven’t made up my mind yet.
Representative: Yep
Tribunal:So just because I have asked a number of questions and as you will recall at the beginning
Representative:    Yep
Tribunal:I made very clear that I would ask a number of questions
Representative:    That’s good
Tribunal:            and I would put my concerns
Representative:    Yep
Tribunal:            to the review applicant which I have done
Representative:    Mmhmmm
Tribunal:            and I have not yet made up my mind.
Representative :   Yep
Tribunal:So I don’t appreciate the inference that you are making today that I have in fact made up my mind because that
Representative:    No. No.
Tribunal:            is entirely inappropriate and not true.
Representative:    Did I say that? Did I say that? Did I say that you had made up your mind?
Tribunal:You implied that.
Representative:    I, I. No. No. I said Member with all due respect all I said ahh when you are a making ah making a decision in relation to this all I was saying please ah you know please give weight to all the other evidence that was put before you in this matter this matter um and and do not and I asked you I was just asking you Member I didn’t say that you’d made up your mind in relation to this I was asking you when making up your mind to please take into account the matters I am just raising with you now. So if I said anything else I do apologise I didn’t mean it I’m just simply saying that when making up your mind please do take into account these matters that were raised. Ah Member the last thing I wanted to say, umm …..
The Tribunal in this decision in addition to considering the Department file and documents submitted pre-hearing by the review applicant and/or the representative, has also considered the additional information it asked the review applicant to provide during the hearing and further documentation and submissions that were provided after the hearing by the representative.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant is the spouse or de facto partner as defined under s 5F or s 5CB of the Act of the review applicant for the purposes of clauses 309.211(2) and 309.221 of Schedules 2 of the Regulations.
Whether the parties are in a spouse or de facto relationship
Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is of Australian nationality. The review applicant submitted a copy of the bio pages of his current Australian passport. A now expired copy of the bio pages of the review applicant’s Australian passport appears on the Department file.
‘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 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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. According to the legal submissions dated 21 November 2022 the visa applicant has been married twice previously and engaged to her cousin. According to the visa applicant’s oral evidence, her cousin came to Lebanon from Australia, and wanted to marry her but the relationship did not go ahead. According to the delegate’s decision the visa applicant’s cousin had applied to sponsor her to Australia on 13 December 2010 but her prospective marriage application was refused on 23 February 2012. The visa applicant has no children from any of her previous relationships. The review applicant has been married once before and at the time of decision has two adult children from that relationship. He has also previously been engaged.
The Department file contains a translated Lebanese contract of marriage between the parties dated 22 February 2018 and a translated marriage certificate indicating that the parties were married on 19 February 2018. 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). However, this evidence alone does not in the Tribunal’s view demonstrate a mutual commitment to a shared life together or a relationship that is genuine and continuing.
Are the other requirements for a spouse relationship met?
Financial aspects of the relationship
The Tribunal has considered the financial aspects of the relationship, including any joint ownership of real estate or other major assets; joint liabilities; extent of any pooling of financial resources; whether one person in the relationship owes any legal obligations in respect of the other and the basis of any sharing of day-to-day household expenses.
Do the parties have any joint ownership of real estate or other major assets?
At the time of application there is no evidence that the parties had any joint ownership of real estate or other major assets.
At the time of decision the parties submitted a translated power of attorney in relation to the sale of real estate dated 10 March 2021. A translated statement from Nabahan Haddad who purports to be an appeal lawyer at the Tripoli Bar Association in Lebanon indicates that the power of attorney is evidence that the parties jointly and individually own a property together in Lebanon. The Tribunal gives this weight.
Do the parties have any joint liabilities?
At the time of application and the time of decision, the parties have no joint liabilities together.
To what extent is there any pooling of financial resources?
At the time of application and time of decision there is no evidence that the parties have pooled their resources.
The review applicant gave oral evidence at hearing that the parties had tried to open a joint account in Lebanon and it proved to be very difficult. Consequently, the parties do not have a joint account.
Does one person in the relationship owes any legal obligations in respect of the other?
At the time of application and time of decision there is no evidence that the parties owed any legal obligations in respect of the other. The review applicant gave evidence at the hearing that he has a superannuation account and that his children are the beneficiaries of that account. The review applicant’s rationale for this was that when the visa applicant comes to Australia, she would be the beneficiary and even though he had not been advised by his superannuation fund that the visa applicant could not be the beneficiary of his superannuation he believed that to be the case because she was living in Lebanon.
What is the basis of any sharing of day-to-day household expenses?
At the time of application, there is no evidence of the sharing of day-to-day household expenses as the parties live in different countries, however, the Department file does contain copies of the following Western Union money transfers from the review applicant to the visa applicant which the Tribunal gives some weight to:
A.$500 on 6 December 2017;
B.$2000 on 11 January 2018;
C.$5000 on 25 January 2018;
D.$300.28 on 13 March 2018;
E.$1500 on 3 April 2018 (post time of application); and
F.$500 on 12 April 2018 (post time of application).
At the time of decision according to the legal submissions dated 21 November 2022, the review applicant has sent money to the visa applicant almost every fortnight from 2017 until 2022, and as per Lebanese custom she will no longer be financially supported by her family and must be fully financially supported by her husband.
The representative’s post hearing submissions dated 7 December 2022 provide further detail on the money transfers from the review applicant to the visa applicant ranging between a little over $300 to over $2100 at a time. Sometimes payments are made more than monthly, sometimes monthly, and sometimes several months elapse before the next payment. However, the Tribunal is satisfied that the review applicant regularly transfers money to the visa applicant and has done so since December 2017.
According to the review applicant’s oral evidence at the hearing, the visa applicant has used the money for [treatment], pocket money, she saves money, buys gold and the money belongs to the visa applicant to spend. The Tribunal gives these transfers weight.
In terms of the financial aspects of the relationship, at the time of application other than a small number of money transfers, there is limited evidence of the financial aspects of the parties’ relationship. As the parties live in separate countries and had only been married and known each other for a relatively short period of time, the Tribunal accepts that there may be difficulty in terms of financial aspects of the relationship, therefore the Tribunal gives neutral weight to this factor in its consideration of this review.
At the time of decision, the parties own a property together in Lebanon, they have no joint debts or legal obligations, there is no evidence of pooling of financial resources in relation to major financial commitments or otherwise and no basis of sharing of day-to-day household expenses as the parties live in different countries. There is evidence of the review applicant regularly sending the visa applicant money for her to spend. On balance, there is some evidence of the financial aspects of relationship, and the Tribunal gives this some weight as to the parties being in a genuine and continuing relationship and having a mutual commitment to a shared life.
Nature of the household
The Tribunal has considered evidence of the nature of the parties’ household, including any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility of housework.
Is there any joint responsibility for the care and support of children?
At the time of application the parties had no children together and there is no evidence of the parties [having] any joint responsibility for the care or support or children or the visa applicant having met or spoken to the review applicant’s children.
The review applicant gave oral evidence that [details deleted]. The review applicant stated that this was not a problem for him as he already has two boys. [Details deleted].
The review applicant testified that the visa applicant has neither met nor spoken to either of his two children. The Tribunal queried this and the review applicant confirmed the position. The review applicant explained that this was because “Australian kids” are a bit shy, and the review applicant stated that when his children see the visa applicant, they will speak to each other. The Tribunal made clear to the review applicant that it found this very strange given the duration that the parties have been married, particularly given that one of the review applicant’s two children currently lives with him. The Tribunal stated that it envisaged that the review applicant’s children would be curious about the visa applicant being their step Mum, especially the child living with the review applicant. The review applicant responded that his older son was living with him, and sometimes the review applicant tells his son to speak to the visa applicant and then he gives up. The review applicant claims that his son is happy with the parties being married but doesn’t know what to say to the visa applicant. The review applicant hopes that when the visa applicant sees his children that they will speak with each other, that his kids are good kids and he does not think there will be an issue between them and their stepmother. The Tribunal reiterated its concern that it was quite strange that the review applicant’s children had not spoken to the visa applicant given the parties had been married for four years and that the parties have had video calls together. It is reasonable for the Tribunal to expect that if visa applicant was to come to live in Australia with the review applicant and his son, that there would have been some dialogue between the visa applicant and the review applicant’s adult child prior to the visa applicant arriving in Australia if her visa was granted, particularly given the duration of the relationship.
The visa applicant’s oral evidence was that when the review applicant’s children are with the review applicant the visa applicant has sometimes said hello and asked the children how they are (she later stated that when the Tribunal raised the inconsistency in the parties’ evidence, that she had only said hello and how are you two or three times). The visa applicant’s evidence also seems inconsistent with her translated statement dated 2 August 2021 which states: “He [the review applicant] has two children whom he loves and adores a lot. I consider them as if they were my children…”. This comment appears strange in the context of the visa applicant not having conversed with the review applicant’s children despite the duration of the parties’ marriage.

The Tribunal prefers the review applicant’s evidence as it was not in the best interests of the review and therefore, is more likely to be true. Although the Tribunal has had regard to [details deleted]. However, this is outweighed by the Tribunal’s concerns that:
A.the parties have been married for almost five years;
B.the visa applicant is the review applicant’s children’s stepmother;
C.one of the review applicant’s children lives with the review applicant; and
D.the visa applicant has neither met nor spoken to the review applicant’s children during that period.
Therefore, the Tribunal finds this indicative that the parties are not in a genuine and continuing relationship and do not have a mutual commitment to a shared life together and do not intend to live together but instead live separately and apart on a permanent basis.
What are the living arrangements of the persons?
At the time of application and the time of decision, the review applicant lives in Melbourne and the visa applicant continues to live in Lebanon with her two sisters, mother, and father. The review applicant’s eldest son lives with him and for the last two years his youngest son has been living with his mother, the review applicant’s ex-wife. The chat records indicate that on 21 November 2017, none of the review applicant’s children lived with him. As the parties live in different countries, the Tribunal affords the living arrangements of the parties’ neutral weight.
The visa applicant gave evidence that the review applicant lived in a rental property which was three bedrooms, two bathrooms, had a kitchen and a living room. The visa applicant was able to articulate the suburb that the review applicant lived but not the street name. The Tribunal raised this as a concern and credibility issue given the duration of the parties’ marriage and that it would be reasonable for her to know the street name of her husband’s residential address. The visa applicant’s explanation was that she lives in Lebanon, she does not focus on these things. She has had a very hard life, too many problems and does not focus on these things, as she has important things to think about. The Tribunal indicated that when the parties have been living apart for four years it would be reasonable to know what the review applicant’s street address is. The visa applicant explained that the parties lived in different continents, she has not been in the house and finds it hard to remember the name of the street as it is hard for her to remember the name of the street in English when she did not even live there.
Although the Tribunal accepts that the visa applicant has not been to the review applicant’s house, that they live in different continents and that English is not her first language, the Tribunal does not consider the visa applicant’s explanation to be likely as parties use their common language of English to conduct their relationship. This is consistent with chat records submitted by the review applicant in English (on the basis that the review applicant’s primary language is Turkish and the visa applicant’s is Lebanese (Arabic)). On 21 November 2017, the review applicant states that the visa applicant speaks English “very well.” Although the visa applicant may well have had a hard life and problems, it would be reasonable to expect that a party in a genuine and continuing relationship would know the street name of a property that their spouse has been living in for four years. Although the Tribunal may accept the visa applicant’s explanation if the review applicant had recently moved into the property or if the visa applicant had been asked the name of the address where the review applicant’s second son lives, given:
A.the amount of time the review applicant has resided at his place of residence;
B.the questions was not of an obscure or unreasonable nature;
C.it is not unreasonable to expect the visa applicant to know the street name where her husband lives;
D.the parties conduct their relationship in English; and
E.at the hearing the visa applicant did provide some oral evidence in English,
the Tribunal gives this negative weight of the parties being in a genuine and continuing relationship.
Is there sharing of the responsibility of housework?
In the review applicant’s relationship statement dated 20 March 2018, he states that the visa applicant will do the cooking, cleaning, washing and grocery shopping and he will do the gardening and home maintenance. Photographs have been submitted by the review applicant which indicate that they were taken in Lebanon in 2019 showing the visa applicant washing dishes, the review applicant mopping, and another photograph of the parties in the kitchen with the review applicant cutting tomatoes. At the time of decision, the review applicant stated that in terms of the opportunity to share housework, sometimes he vacuums and together the parties make the bed, but that is all he does. When he travels overseas, he is looked after, and tries to help. Given that the parties live in separate countries and for the most part maintain different household there would not be much opportunity for the parties to share housework. Therefore, despite the inconsistency of the review applicant’s relationship statement and his oral evidence, the Tribunal gives this neutral weight.
In terms of the nature of the household, at the time of application the parties had no children together and there is no evidence of any joint responsibility for the care and support of children, the parties lived in separate countries and because of that, the Tribunal acknowledges that there would be limited opportunities to share the responsibilities of housework. On balance, the Tribunal affords the nature of the household neutral weight.
At the time of decision the parties still have no children [together]. The weight the Tribunal has given to this evidence is undermined by the visa applicant having neither met nor according to the review applicant spoken to the review applicant’s children. Given the duration of the parties’ marriage, the fact that by virtue of marriage the visa applicant is the stepmother to the review applicant’s two children and because one of the review applicant’s children resides with him, the Tribunal finds this weighs in favour of the parties not being in a genuine and continuing relationship or having a mutual commitment to a shared life together. The parties currently reside in separate countries, the review applicant with one of his son’s and the visa applicant with other members of her family. Despite being married for almost five years, the visa applicant was unaware of the street that the review applicant lived in. The Tribunal finds it unlikely that parties that are in a genuine relationship would not know the street their spouse lives in. There is some evidence of the sharing of the of the responsibility of housework, but as the parties live in different countries there are limited opportunities to do so. On balance, for the reasons already articulated, the Tribunal considers that the nature of the household is not indicative of the parties being in a genuine and continuing relationship or a have a mutual commitment to a shared life together.
Social aspects of the relationship
The Tribunal has considered evidence of the social aspects of the relationship, including whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship, and any basis on which the persons plan and undertake joint social activities.
Do the persons represent themselves to other people as being married to each other?
The review applicant’s relationship statement dated 20 March 2018 indicates that the parties were married at the visa applicant’s home in Fnaydek on 5 February 2018. The visa applicant’s translated statement dated 7 August 2021 states that the parties’ marriage ceremony “…was limited to a small family-party where only some relative and friends attended.” This is consistent with copies of photographs on the Department file of what appears to be the couple in a marriage ceremony with a small number of guests.
The Department files contain two statutory declarations which state that the parties are either spouses or in a loving marital relationship. These are discussed further, below.
At the time of application there is a small amount of evidence that indicates that the parties have represented themselves to other people as being married to each other.
At the time of decision, the review applicant submitted the following statutory declarations of:
A.Ayhan Zeybekoglu, dated 14 August 2020. Mr Zeybekoglu states that he is an employee and friend of the review applicant and is aware of the review applicant’s marriage to the visa applicant, that the review applicant has made numerous trips to see his wife the visa applicant, and Mr Zeybekoglu has seen photographs of the review applicants travels whenever he travels to see the visa applicant. The Tribunal gives this statutory declaration a small amount of weight as it does not appear that Mr Zeybekgoglu has ever met the visa applicant or seen the parties together, and this respect can only comment about what he has heard about the nature of the parties’ relationship rather than what he has himself witnessed.
B.Ebru Akbas, dated 14 August 2020 who is a friend of the review applicant and at the time of the declaration had known the review applicant for over 10 years and is aware of his marriage to the visa applicant. Ebru Akbas states that he has seen the effort that the review applicant has put into the relationship with the visa applicant in that he has travelled to be with her, and both parties communicate regularly if not daily by phone call, text, and video call. Like Mr Zeybekgoglu, Mr Akbas also does not seem to have met the visa applicant or seen the parties together, and therefore cannot really comment on the nature of their relationship based on his own observations of the parties and therefore the Tribunal gives this a small amount of weight.
C.Omar Jawad, dated 30 August 2020, who is the brother of the visa applicant, and lives in Australia, has known the review applicant for a “long time”. He states that when the review applicant visited Lebanon, Mr Jawad was staying with his family and the review applicant came to visit him and met the visa applicant at her family home. The parties would go out and have fun travelling around Lebanon. The parties got married and seem very happy, and the review applicant travels overseas to see the visa applicants. The Tribunal gives this some weight.
D.Zena Jawad, dated 30 August 2020, who is the visa applicant’s niece and attended the parties’ wedding in Lebanon. Ms Jawad states that the parties have fun with each other at cafes and enjoy each other’s company. The review applicant is generous and spoils the visa applicant with gifts, and always makes sure she is happy. The parties laugh, flirt with each other, and seem very happy together. The Tribunal gives this some weight.
At the time of decision, given the statutory declarations discussed above and those below, there is evidence that the parties represent themselves to others as being married to each other. The Tribunal gives this some weight.
What is the opinion of the persons’ friends and acquaintances about the nature of the relationship?
The Department file contains form 888 statutory declarations from:
A.Ayhan Zeybekoglu, a friend of the review applicant for eleven years and had never met the visa applicant at the time of the declaration dated 19 May 2018. He states that they the parties are in a loving and committed relationship.
B.Ibrahim Arpaci, a friend of the review applicant for 19 years who has never met the visa applicant at the time of the declaration dated 19 March 2018. He states that the review applicant is happy that he met the visa applicant and that they got married in Lebanon and it is his belief that they are in a loving marital relationship.
At the time of application, as the declarants have never met the visa applicant, never seen the parties together, and provide little insight as to the nature of the parties’ relationship. The Tribunal gives the opinion of the persons’ friends and acquaintances little weight.
At the time of decision the review applicant also submitted translated undated statements from:
A.Bouchra Jawad, who is the applicant’s niece. She attended the parties’ “Kateb Ktab” (the review applicant gave evidence that this is an Arabic term, it is a religious engagement ceremony to make the marriage valid religiously). The next day, the parties travelled to Turkey for a honeymoon. The review applicant comes to Lebanon to visit the visa applicant and Ms Jawad has seen them happy together.
B.Nadine Mohamad Hammoud El Masri. It is not clear how long Ms El Masri has known the visa applicant as she states a “long time”. She states that the parties’ relationship is “real, full of understanding and respect” and she knows this because during summer they spend most of their time in each other’s houses. The parties spend most of their time in Turkey or in restaurants coffee shops, archaeological places in Lebanon “…we visited Al Arabin mountain, Al Rawshe, Babel restaurant and we took many pictures” and have picked apples together (photographs were submitted by the review applicant in which some of these activities are clearly visible). Ms El Masri has seen the parties arrange a bed together and in the morning the visa applicant brings her husband Nescafe and a banana. The visa applicant has made them Turkish food, and after finishing, the parties cleaned up together. The visa applicant has also shown Ms El Masri gifts that the review applicant has bought her like perfume, make up and clothes.
Ms El Masri’s evidence about the gifts is consistent with various receipts submitted by the review applicant for women’s clothing, makeup, shoes, bags, earphones, and sunglasses. The Tribunal gives Ms El Masri’s statement some weight.
C.Abdulhafiz Maarouf Alameddine, knows the visa applicant due to his friendship with her brother. Mr Alameddine found out about the parties’ relationship as he was told by the visa applicant’s brother. He is aware the parties were married, went to Turkey on their honeymoon and from time to time the review applicant comes to Lebanon to see the visa applicant. Sometimes Mr Alameddine goes with the visa applicant to take or bring him to the airport. They have also visited many places together such as Al Rawshe, Al Saha, restaurants, and coffee shops. The parties have helped each other prepare the table, and because the review applicant likes tea, the visa applicant brought him some after lunch.
In considering all the statements submitted to the Tribunal, although some provide limited detail as to the nature of the parties’ relationship, the Tribunal finds that on balance the statements indicate that the parties socialise together and have spent time together and as a whole they provide some information regarding the nature of the parties’ relationship. The Tribunal gives them some weight.
Is there any basis on which the persons plan and undertake joint social activities?
According to the review applicant’s relationship statement dated 20 March 2018, the parties’ social activities include going to cafes, restaurants, sightseeing, walks, shopping and visiting friends and relatives. This is consistent with photographs of the parties submitted to the Tribunal.
The Department file also contains photographs of the parties together, eating meals together and with others, riding camels, with others, on what appears to be their wedding day and riding in a horse and carriage. It is clear from the photographs that the parties have spent time together, though the photographs are not dated and are not labelled so it is not clear over what period they were taken, where they are taken or with whom. In this respect, it is not clear whether these photographs were taken before or after the time of application. For these reasons, the Tribunal gives the photographs some weight.
The review applicant also submitted a file of photographs indicating that they were taken of the parties during their honeymoon in February 2018. These photographs show the parties together at a number of different locations. The Tribunal gives this some weight.
The review applicant submitted a bundle of photographs of the parties’ hot air ballooning together, together in a car park, of the review applicant cutting food in a kitchen, the parties in an apple orchard, the parties standing in front of a kitchen sink, the parties at a rocky beach, the parties eating and drinking together at various locations, numerous photographs of the parties together and separately at various locations, the parties with others eating barbeque corn, the review applicant sweeping whilst the visa applicant appeared to do the dishes, the parties around a table seemingly have drinks with others, the parties eating with others, the parties rafting together, the parties ziplining together, the parties in front of what appears to be a castle, the parties on a plane together, the parties on a horse and carriage, riding camels and others. Although the photographs indicate that the parties have spent time together and with others, they are rarely date stamped, have no description (other than occasionally for an entire bundle) and it is often unclear where they are taken, over which time frame and the other parties that are in them. The Tribunal affords the photographs some weight.
A bundle of photographs submitted by the review applicant which indicate that they were taken in Adana, Turkey in August 2018 indicate that the visa applicant has met the review applicant’s sister and his nephew. This is consistent with stamps on the review applicant’s passport.
Other evidence was submitted to indicate that the parties have travelled to Malaysia and the UAE together, which the Tribunal gives some weight to.
It is clear from the parties’ oral evidence that they have knowledge of each other’s friends and have met them. There are many reasons why people meet each other’s friends and this factor is not necessarily indictive of the parties being in a genuine spousal relationship. Additionally, when the review applicant was asked how the parties like to spend time and socialise together, he stated that they go on holidays together (which is confirmed by the photographs) and when they live together it will be “a different story”, they will socialise and visit friends. The Tribunal asked whether the review applicant was concerned about what would happen in Australia to which the review applicant’s response was Australia is multicultural and he did not have any concerns about socialising with the visa applicant in Australia. Then, somewhat inconsistently, he stated the parties only go to wedding parties and engagement parties and visit family and friends – though this is not readily apparent from the photographs submitted. They do not go to nights or pubs and he does not have concerns about the parties socialising together in Australia.
In relation to the social aspects of the parties’ relationship at the time of application, there is a small amount of evidence of the parties representing themselves to other people as being married, little evidence of the opinion of the parties’ friends and acquaintances about the nature of the relationship and some evidence of the parties undertaking social activities. This evidence comes in the form of two brief statutory declarations and some photographs. The declarants have never met the visa applicant, never seen the parties together and provide limited insight to the nature of the parties’ relationship. It is often not clear from the photographs provided where they are taken, over what time frame and who is in them. On balance, although there is some evidence of the social aspects of the parties’ relationship it does not provide much in the way of support of the parties being in a genuine and continuing relationship or a mutual commitment to a shared life together.

At the time of decision, there is some evidence of the parties representing themselves to others as being married and further statements have been submitted from the parties’ friends and acquaintances about the nature of their relationship. Although the Tribunal accepts that many statements have been submitted and that the statements indicate that the parties have socialised and spent time together, they collectively provide some information as to the nature of the parties’ relationship despite the duration of their marriage. A bundle of photographs was submitted of the parties undertaking numerous social activities together and some with others. However, other than describing the bundle as a whole, the photographs are not date stamped so it is not clear over what time they were taken and it is not always clear where they were taken or who the other individuals in the photographs are. The Tribunal has also considered the effect of the COVID-19 pandemic on the social aspects of the parties’ relationship, however other than from the end of March 2019 until November 2021 there is evidence to suggest that the parties have seen each other in person a number of times, including twice in 2022 and given the duration of the parties relationship, this does not explain the small amount of information as to the nature of the parties’ relationship despite the relative large number of statements submitted. For these reasons, although there is some evidence of the nature of the parties’ relationship, given the time that has elapsed since the date of application, it only provides some support for the parties being in a genuine and continuing relationship or a mutual commitment to a shared life together.
Nature of persons’ commitment to each other
The Tribunal has considered evidence of the nature of the persons’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support that the persons draw from each other and whether the persons see the relationship as a long-term one.
What is the duration of the relationship?
According to the review applicant’s relationship statement dated 20 March 2018, the review applicant met the visa applicant on 5 November 2017 in Lebanon. On returning to Australia the review applicant commenced regular communications with the visa applicant via WhatsApp, he returned to Lebanon on 3 February 2018 and the parties were married on 5 February 2018 with the marriage being registered on 19 February 2018.
The review applicant’s statutory declaration dated 26 May 2021 provides further information and clarifies his previous statutory declaration. It indicates that the review applicant was visiting Lebanon under the invitation of his friend Ali Saeed. On arriving at Lebanon he was collected from the airport by Mr Saeed and Omar Jawad (who is the visa applicant’s brother). The review applicant knew Mr Jawad as an acquaintance when they both worked on a building site. He spent the first five days of the visit at Mr Saeed’s home, but there was no shower, and the review applicant did not shower for five days. Mr Jawad enquired as to how he was doing, and on learning that the review applicant had not showered, invited the review applicant to dinner and shower. It was at dinner that he met the visa applicant on 5 November 2017. The parties “…did not speak to each other much as we were still strangers” and only engaged in small talk. The review applicant stayed at Mr Jawad’s house for one night. Mr Jawad then invited him on a four-day last minute trip to Turkey. On that trip both Mr Saeed and Mr Jawad “…were very persistent to set me up with Waed [the visa applicant]”. Mr Saeed suggested the review applicant get to know the visa applicant more and “perhaps consider re-marrying. At first, I found it bizarre that he would tell me that and out of respect to Omar [Mr Jawad], I did not answer and brushed off the topic.”On return to Lebanon Mr Jawad organised a gathering with his family and it was then when he was able to properly talk to the visa applicant and get to know her better. records dated 21 November 2017 at 10:35 appear to be inconsistent with this as they indicate that the parties did not have a chance to talk whilst the review applicant was in Lebanon. The statutory declaration seems to indicate that was the last time he saw her before returning to Australia. Chat About a week later, Mr Saeed provided the review applicant with the visa applicant’s number which has been provided by Mr Jawad. The review applicant accepted the number and commenced speaking with the visa applicant.
The review applicant submitted WhatsApp chat records from 21 November 2017 until October 2022. The chat records indicate that the parties discussed marriage on 24 November 2017 with what appears to be the parties agreeing to marry.
According to the representative’s Legal Submissions dated 21 November 2022, the representative concedes that the parties’ relationship “…may be seen as rapid and unconventional, particularly by western standards.” The representative also stated that despite this there were a number of points to substantiate the nature of the parties’ commitment to each other and the genuineness of their relationship:
A.both parties are “…faithful adherents of the Islamic religion, which prohibits dating before marriage, and prolonged intermingling between men and women before marriage.”
B.the parties’ entry into the marriage was not rash and hasty. They spoke for approximately three months in person and online with daily and lengthy video calls prior to their marriage. They were also introduced to each other by their close friend and brother, because of this they were not complete strangers and felt they had known each other for a long time due to their mutual social circumstances.
C.the visa applicant is infertile and suffers depression and anxiety, which was one of the issues in her previous marriages as she was often blamed for her inability to naturally bear children.
D.both parties are divorcees and have bonded over their previously failed relationships which has allowed them to best identify compatible traits early in a relationship.
E.their need for emotional support, due to failed marriages and past relationships and medical issues which enabled them to bond, find solace and develop romantic feelings.
F.the parties are of mature age, the review applicant has two adult children, and both have experienced relationships and marriages prior to meeting. The introductory period was assisted by their respective honesty about preferences and priorities.
In the current circumstances, the Tribunal has difficulty accepting the reasons which according to the representative demonstrate the genuineness of the parties’ relationship. This is because, according to the chat records submitted by the review applicant which are in English it is clear that as at 21 November 2017, the parties did not know each other. At 10:35pm the parties had the following exchange which indicates that on the two occasions in early November 2017 that the review applicant first met the visa applicant in Lebanon it appears that they did not have much of an opportunity to speak with each other:
Review applicant:            We didn’t have a chance to talk with you over there
Visa applicant:                Mmmm
Maby [sic] you come here nshalla
Another time
And we talk
Face to face yeah?!
Review applicant:            So you talk [sic] very well English [sic]
I m [sic] so happy to understand each other
An extract of the chat from 11:16pm onwards is as follows:
Review applicant:            Please tell me about yourself
Visa applicant:                Ok
Visa applicant:                Ask me
Visa applicant:                And i [sic] will answer
Visa applicant:                For any thing [sic]
Review applicant:            So how long you were married with who
Visa applicant:                For 3 years
Review applicant:            Okay what is your name please?
Visa applicant:                Waeed jawal [sic]
Visa applicant:                Im [sic] 31 years old
Review applicant:            I apologise I don’t know anything about you I m [sic] just learned [sic]
Three days later, on 24 November 2017 at 7:52 pm the chat continues as follows:
Review applicant:            So you want to marry me?
Visa applicant:                Hnnn
Review applicant:            Easy question
Review applicant:            Will you marry me
Visa applicant:                Up to you
Visa applicant:                If u like me
At 8:30pm:
Visa applicant:                So you have a information [sic] about what you do i u [sic] want to marry
Review applicant:            Best way you and me engage
And I bring you here to get married
I asked lawyer
Visa applicant:                Yes nshalla
Review applicant:            So we gonna have party in your house
Visa applicant:                Hhh up to you
Review applicant:            Photo and ring
Visa applicant:                Nshalla
Review applicant:            And also we talk everyday
Visa applicant:                Yes
Review applicant:            And also we need to know each other about [sic] something and family
Visa applicant:                Of course
Although the Tribunal accepts that the Islamic religion may prohibit dating before marriage and prolonged intermingling between men and women before marriage, the Tribunal’s concern is in relation to a marriage proposal when three days prior it seems the parties know little about each other, did not have a chance to talk when the review applicant was in Lebanon and met the visa applicant the first time and a migration conversation occurring 38 minutes after the review applicant’s marriage proposal to the visa applicant, as set out in the chat records above. Additionally, the extract on 21 November 2017, does not seem consistent with the parties feeling like they had known each other for a long time due to their mutual social circumstances as submitted by the representative.
During the hearing, the Tribunal read the extracts to the review applicant from 11.16pm on 21 November 2017 and on 24 November 2017 and expressed its concerns about the three-day time period between the review applicant making it clear that he did not know anything about the visa applicant and then three days later proposing marriage. The review applicant stated that there must be something wrong. The Tribunal on asking the review applicant whether he provided the chat records, and not being clear on how there could be something wrong with them, was told by the review applicant that it was very strange, there must be something wrong, he thought it was very strange as well and that it was very early. The Tribunal made clear to the review applicant that it found the exchange concerning. Had the quick progression about this relationship been cultural as suggested by the representative, the Tribunal would have expected the review applicant to have told the Tribunal that, rather than give evidence that there was something wrong with the records that the review applicant submitted and indicating that the timing in relation to the marriage proposal was also strange from his perspective. Additionally, the review applicant also suggested to the Tribunal that maybe the visa applicant rang from a different number and maybe he didn’t recognise it. The Tribunal gives this evidence negative weight of the parties being in a genuine and continuing relationship and the parties having a mutual commitment to a shared life together.
The Tribunal then raised that it found it very strange that the review applicant would ask the visa applicant to marry him at 7:52 and by 8:30 have a migration conversation. The review applicant indicated that the wedding partner visa is very hard, and the best way to bring the visa applicant to Australia was to speak to his lawyer. Although this may be the case, it does not seem likely in a genuine relationship that this conversation would occur prior to the plans for a wedding celebration and so quickly after a proposal. The Tribunal again raised is concerns about what effectively was a migration conversation and the review applicant stated that he had provided the information four years ago, and maybe there was something wrong with the information or dates. The Tribunal again expressed its concerns about the conversation.
The representative in the legal submissions dated 21 November 2022 states that “…it is submitted that it is expected of the [s]ponsor to query with he [sic] [a]pplicant whether she would be amendable to moving to Australia should they proceed with their relationship, as it would be fickle and pointless to commence a long-distance relationship with someone vehemently opposed to migration, and wanting to stay in their home country.” The Tribunal considers that a question of this nature would have been reasonable, however, that is not the concern the Tribunal has. The review applicant did not ask the visa applicant if she wanted to come to Australia to live. The conversation was more detailed, indicated he had spoken to a lawyer and appeared to be putting in place evidentiary requirements for a migration outcome. The Tribunal considers that conversations of this nature and content are unlikely on the day that parties become engaged, the content itself is also concerning, as it appears to have a migration focus, as the review applicant had indicated that he had spoken to a lawyer, the parties need to speak every day, and they need to know about each other and each other’s families. Also of concern is the review applicant’s explanation of these conversations which essentially questions the accuracy of the documents that he submitted and queries the timing of the conversations, also considers its strange and that maybe something was wrong. The Tribunal gives this evidence strong weight as being indicative of the parties not being in a genuine and continuing relationship and not having a mutual commitment to a shared life together.
Additionally, on 20 February 2018 chat records submitted by the review applicant seem to support the Tribunal’s weightings. A large slab of information is provided by the review applicant which appears that it will be used for migration purposes. The Tribunal finds it odd that this would be discussed one day after the registration of the parties’ marriage and notes that it was just prior to the visa application on 22 March 2018:
Visa applicant: Hello
Where are u
Babe
Review applicant: My name is waed [sic] Muhammed Jawad. November 2017 Cengiz came over our [sic] house with his friend Ali. And we saw each other in my house. And we talked with him. And I liked him. After one week came over again he stay our [sic] house. And I feel something between each other [sic]. We got phone number each other [sic]. When he go back Australia [sic] we start to talk with him. About 3 months we keep talking about ourselves and our plans and about feeling each other. After we decide to get know [sic] each other. I spoke with my parents about my feeling and also our plans. My parents except [sic] my decision. I told him to come over my house. We decide to get married. 3 of February he come our house and he spoke with my parents and they except [sic] our relationship and decision. We got married. We go turkey [sic] for honeymoon. We go Istanbul. We stay golden Horne Istanbul 10 days. We go many places in Istanbul. We go great Ireland [sic] ( Buyikada) Topkapi Saray venezya shopping centre bakirkoy sultanahmet. Our plan we [sic] want to have good family life. When I go his country [sic] (Australia) I want to do hairdresser [sic] Look after each other. I hope we both work and buy house. We want to have kids. And happy life.
According to the review applicant’s oral evidence at hearing the parties honeymooned in Istanbul and stayed in the Golden Horn hotel. The review applicant initially stated the parties stayed there for 10 days, then said, that he was not too sure, maybe it was 14 days, and settled on 14. The Tribunal notes that the review applicant’s statutory declaration dated 26 May 2021 indicates that it was 10 days. The Tribunal does not put any adverse weight on this inconsistency due to the stress of the hearing process. The visa applicant could not recall the name of the hotel that the parties honeymooned in. She stated it was in Istanbul, Turkey, said the name was Turkish and it was four years ago. She does not speak Turkish and was not focussing on the names of the hotels and places as it was not in Arabic. She was focussing on spending quality time with the review applicant as the time she spends with him is limited.
Additionally, the Tribunal mentioned to the visa applicant that the Tribunal found it strange that she would not know the name of the hotel she stayed at on her honeymoon, particularly when the parties would have had to have come in and out of it many times. To this the visa applicant stated that she did not know what to say in this regard, they visited many places, and she does not memorise the names of hotels.
The Tribunal also raised the concern about the honeymoon at the end of the hearing. The representative submitted that the reason for the visa applicant not being aware of the name of the hotel was that it may have been in Turkish (though this does not appear to be consistent with the chat records), she did not give much attention to the name and was more focussed on spending quality time and not paying attention to names, addresses, hotels, and room numbers. The Tribunal made clear that it was not concerned about the address or the room number.
The Tribunal does not accept either the visa applicant’s or representative’s explanation as to why the visa applicant did not know the name of the hotel that she stayed in on her honeymoon because:
A.chat records between the parties indicate that the language the parties communicate in is in English (as they have no other common language);
B.a honeymoon is an important relationship milestone and generally a momentous occasion which is not equivalent to staying at a hotel on a holiday;
C.of the significance of the occasion it is reasonable to expect that the visa applicant to remember the name of the hotel that she stayed with on her honeymoon;
D.the fact that the parties stayed at the hotel for ten days and would have frequently come in and out of it thereby seeing signage and in all likelihood branding for the hotel; and
E.the chat records extracted above between the parties appear to indicate that “Golden Horne” is an English word and not an Arabic or Turkish name, and this was communicated to the visa applicant by the review applicant in writing.
For these reasons, the Tribunal has concerns as to whether the parties actually honeymooned and gives this weight against the parties being in a genuine and continuing relationship.
At the time of application, the parties had known each other and been engaged for approximately four months and married for over a month. The Tribunal gives this little weight.
At the time of decision the parties have known each other for over five years and married for almost five years. The Tribunal gives this some weight.
What is the length of time the parties have lived together?
In terms of the parties’ living arrangements, the review applicant resides in Australia and the visa applicant lives in Lebanon. Although the parties may have stayed in the same hotel at times, holidaying together and living together are not the same. Various hotel bookings were submitted, some were not in English, and the rest were in the review applicant’s name only. The Tribunal finds the parties have not lived together and the Tribunal does not afford any negative weight to this evidence as it is the parties’ visa situation which keeps them from living together.
What is the degree of companionship and emotional support that the persons draw from each other?

The review applicant submitted a medical certificate from [a named doctor] dated 9 August 2022 which indicates that the visa applicant is suffering from depression and her major “stressers [sic]” are the inability to join her husband in Australia due to the COVID crisis, [and] social and medical stress in Lebanon secondary to the current political crisis.
The review applicant’s relationship statement indicates that the parties remain in touch daily via WhatsApp and that they “constantly provide each other with social and emotional support.” The review applicant submitted many WhatsApp logs from November 2017 until October 2022. The Tribunal accepts that the parties have had conversed regularly during that period.
The legal submissions dated 21 November 2022 combined with those dated 7 December 2022 (post hearing) indicate that the parties have travelled together on the following occasions to:
A.Travel to Lebanon in November 2017.
Stamps on the review applicant’s passport indicate that he entered Lebanon 1 November 2017 and exited on 7 November 2017. Although the Tribunal accepts that the review applicant travelled to Lebanon at this time, the purpose of the trip was not to visit the review applicant. According to the review applicant’s statutory declaration dated 26 May 2021, he first met the review applicant on 5 November 2017 when he was invited to her brother’s house to have dinner and shower, and on that occasion, they did not speak much “…as we were still strangers”. He met her again at a family fathering arranged by her brother but were not in a relationship at that stage.
B.Honeymoon in Istanbul, Turkey in February 2018;
The Tribunal has already expressed its concerns in relation to the parties’ honeymoon. Stamps on the review applicant’s passport indicate that he entered and exited Ataturk (Istanbul) in Turkey on 6 February 2018 until 16 February 2018, which indicate that the honeymoon was 10 days.
C.Travel to Turkey in August 2018;
Stamps on the review applicant’s passport indicate that he entered Sakirpasa airport in Adana, Turkey on 30 August 2018 and exited on 3 September 2018.
D.Lebanon in March 2019
The review applicant’s passport indicates he arrived in Lebanon on 11 March 2019 and left Lebanon on 24 March 2019. It is also consistent with an e-ticket / itinerary submitted by the review applicant. Photographs were submitted to the Tribunal by the review applicant said to be taken in Lebanon though the photographs are not labelled, or date stamped, and it is not clear who the individuals are in them. The photographs show the parties at various locations together as well as with others.
E.Travel to Dubai in November 2021;
Passport stamps indicate that the review applicant travelled to Istanbul on 2 December 2021 and left Istanbul on 13 December 2021. A stamp exists in the review applicant’s passport dated 25 November 2021 indicating that he entered the UAE. It is not clear when he exited. Photographs were also submitted by the review applicant of the parties in Dubai.
F.Lebanon in February/March 2022; and
A booking confirmation submitted by the review applicant indicates that the review applicant left Australia on 21 February 2022 flew to Lebanon and returned to Australia on 4 March 2022. There is a date stamped photograph of the parties at a table with food on it dated 25 February 2022.
G.Malaysia in September / October 2022.
Stamps in the review applicant’s passport and copies of airline tickets indicate that the review entered Kuala Lumpur on 6 September 2022 and left on 20 September 2022. Tickets in both parties’ names indicate that they travelled to Langkawi on 15 September 2022. Flights in the visa applicant’s name indicate that she flew from Beirut to Kuala Lumpur departing on 5 September 2022 and returning on 20 September 2022.
There is also indication that both parties flew from Kuala Lumpur on 15 September 2022 to Langkawi. Photographs were also submitted of the parties in Malaysia together in front of various landmarks, dining together, parasailing, and engaging in other water activities.
The Tribunal accepts that the parties have travelled together, though notes, that to travel together is not indicative necessarily of the parties being in a genuine spousal relationship. Since the parties have married, they have seen each other five times. The Tribunal does not consider this unreasonable accounting for the COVID-10 pandemic, and the Tribunal gives the travel evidence some weight.
The review applicant gave evidence that he did not remember if he supported the review applicant emotionally prior to their marriage. Later he stated that he told the visa applicant that he loved her, wanted to get married, and that she was very beautiful. When the visa applicant [is] sad, and he supports her emotionally as well as when the visa was refused. The brevity of the review applicant’s evidence is not consistent with the evidence submitted in relation to the application of priority which indicates that the visa applicant has a major depressive [illness].
The review applicant stated that the visa applicant supported him emotionally when her visa was refused, she told him to relax and when he gets upset that is what she does. The visa applicant stated that the review applicant is the type of person who does not speak a lot about things that upset him. She tries as much as she can to give him emotional support for example, if he is upset with his kids or his sister, however, the visa applicant conceded that the review applicant supports her more than she does him. She has been through hard times in Lebanon when she is alone, and when she returns from doctor’s appointments, he supports her on the phone and he would cry and laugh with her. Given the evidence submitted by in relation to the priority request, the Tribunal asked whether the visa applicant wanted to add anything further, and the visa applicant made clear that she had finished and did not expand her answer.
Given the medical evidence pertaining to the visa applicant, the relatively brief oral evidence provided by the parties does not appear to be consistent with medical evidence of the nature [submitted]. Accordingly, the Tribunal finds that the parties do not seem to draw much emotional support from each other.
Do the persons see the relationship as a long-term one?
According to the review applicant’s relationship statement dated 20 March 2018 on the Department file, the parties will open a joint bank account in Australia, and the visa applicant is currently attending a hairdressing course with the view that upon arrival in Australia she will upgrade her English language skills and seek employment as a hairdresser. The parties also intend to have children together. The review applicant’s oral evidence was consistent. He testified that the parties’ plans for the future are first for the visa applicant to get her visa. The review applicant’s current house has no privacy, so they will move to a better house, and will change the furniture. The visa applicant will need to get her Australian driver’s [licence]. She needs to start a job as a hairdresser and save some money for a housing deposit.
In most respects, the visa applicant’s testimony was substantially similar. Once she comes to Australia, the parties would move to a place suitable for the family, she would work, the review applicant would work, and the parties would support each other to buy a house. However, when the Tribunal discussed the visa applicant’s relationship statement dated 2 August 2021 wherein, she stated she was prepared to work in the field of her profession “beauty expert” to support her husband if needed the visa applicant gave evidence that make up is one of the things that she enjoys doing, it is a hobby and she would like to work on being a makeup artist. The Tribunal asked if that is something that she would like to do if she came to Australia. The visa applicant stated it would be something that she would want to work on but also wanted to take care of the review applicant and children and expand on it in the future. The visa applicant said she had discussed this with the review applicant. However, this does not seem to be consistent with the review applicant’s oral evidence about the parties’ future plans. The Tribunal observes that it appears that the review applicant is unaware of the visa applicant’s hobby and her desire to work on being a makeup artist.
The Tribunal raised its concerns that in Australia there was a difference between hairdressers and make-up artists and due to the inconsistency of the parties’ evidence the Tribunal was concerned that the parties had not discussed it. According to the visa applicant in Lebanon hair and makeup is done in the same place and she had done a course with both beauty and hair. Although the Tribunal accepts that this may well be the case, there appears to be a lack of understanding by the review applicant of what the visa applicant likes to do – which appears to involve makeup rather than hair, despite her being qualified in both. The Tribunal places some negative weight on this lack of knowledge given the review applicant’s relationship statement indicates that the parties communicate daily.
If the visa applicant could not come to Australia, the review applicant made clear that he had been to Lebanon many times and given the economic problems he does not believe he could stay there. He stated that maybe the parties would go to Turkey. The visa applicant is his wife, and for the last four years he has loved her and would try and find a proper solution, would speak to his lawyer, and examine the parties’ options. He mentioned that although it is hard to live in other countries, and you love someone that is living overseas, it is not easy to provide an answer. The visa applicant’s evidence was the plan was to keep on trying until her application was accepted, and if it doesn’t happen, she did not know whether the review applicant would come to live in Lebanon or Turkey, but the plan for now is to keep trying. It seems to the Tribunal that the parties have not discussed the potential eventuality of what would occur if the visa applicant’s visa was not granted.
In terms of the nature of the parties’ commitment to each other, at the time of application the parties had known each other and been engaged for approximately four months and married for over a month. The parties have not lived together but claim to have stayed with each other during visits. There is limited evidence of emotional support that the parties have drawn from each other. There is evidence of the parties regularly communicating with each other and of long-term plans. The Tribunal has concerns about the quick inception of the parties’ relationship from not knowing each other to a marriage proposal in three days and a migration conversation less than 40 minutes after the proposal. The chat records indicate that prior to the proposal that the review applicant had obtained legal advice, set out the parties need to speak to each other every day and need to know about each other and their families which seems to indicate that the parties’ relationship is not genuine and there is not a mutual commitment to a shared life together. Additionally, when these matters were raised with the review applicant he questioned the accuracy of the documents that he submitted, queried the timing of the conversations, considered it strange and indicated that maybe something is wrong which further supports the Tribunal’s view.
At the time of decision the parties have been in a relationship for over five years, have not lived together but have indicated that they have stayed together, although relatively brief support was given in relation to the emotional support the parties gave each other, it does not appear consistent with the medical evidence pertaining to the visa applicant submitted in support of the priority request [and] the evidence of daily communication between the parties. There is evidence of long-term plans, however, there appears to be some inconsistency about the visa applicant’s career if she were to come to Australia, in that although the visa applicant may well be trained to do hair and makeup, makeup is one of the things she would like to work on which causes the Tribunal concern about the parties’ knowledge of one another’s interests. It also appears that the parties have had no discussion as to what will happen to the parties’ relationship if the visa applicant’s visa is not granted. Although there is some evidence of the nature of the parties’ relationship, overall, the Tribunal is not satisfied that it supports the parties being in a genuine and continuing relationship or a mutual commitment to a shared life together.
For the above reasons, the Tribunal is not satisfied that the requirements of s 5F(2) are met at the time the visa application was made.
CONCLUSION
The Tribunal has already discussed that the parties will have been married for five years on 19 February 2018, however, this in itself does not indicate that the parties are in a genuine and continuing relationship.
Although the Tribunal accepts that at the time of decision that there is some evidence in support of the parties’ relationship namely that:
A.the review applicant has regularly transferred money to the visa applicant to support her financially;
B.the parties own a property together in Lebanon;
C.there is evidence that the parties have travelled together, communicate daily and socialise;
D.there is evidence that the parties represent themselves to others as being married and there is some evidence as to the nature of their relationship; and
E.the parties [are] trying to have a child together,
for the reasons already explained in relation to the reg 1.15A(3) matters, this evidence is outweighed by stronger evidence as follows:
a.    the visa applicant not having ever met or spoken to the review applicant’s children despite one of the review applicant’s children living with him, the duration of the parties’ relationship (the parties have almost been married for five years) and that the visa applicant is the stepmother of the review applicant’s children;
b.    the visa applicant is not aware of the street name where the review applicant (her husband) has lived for the past four years which is information which it is reasonable to expect a party in a genuine spousal relationship to know;
c.    chat records indicate that although the parties met in Lebanon in early November 2017 they did not have a chance to talk. Later in the month the review applicant apologises for not knowing anything about the visa applicant and three days later, he proposes to the visa applicant. 40 minutes after the proposal, after indicating the review applicant has spoken to his lawyer, the parties appears to have a migration conversation – which seems for parties in a genuine and continuing relationship, unlikely on the day that a marriage proposal occurs. When this was put to the review applicant he questioned the accuracy of the documents that he submitted, queried the timing of the conversations, considered it strange and indicated that maybe something was wrong. No mention was made of cultural reasons or his faith for the rapid marriage proposal;
d.    the visa applicant maintaining that she did not know the name of the hotel the parties stayed at during their ten-day honeymoon, despite the name appearing in English in chat records between the parties, and despite a honeymoon generally being an important relationship milestone;
e.    the level of emotional support that the parties derive from each other is not consistent with the medical evidence pertaining to the visa applicant or the [treatment] that she was undertaking that was submitted in support of the priority request or of parties that communicate on a daily basis;
f.    the review applicant appears to be unaware that despite the visa applicant’s qualification in hair and beauty, her hobby and interest is in makeup rather than hair dressing; and
g.    the parties seemingly not having discussed what would occur in relation to their relationship if the visa applicant’s visa was not granted.
For these reasons and with respect to the reg 1.15A(3) matters the Tribunal is not satisfied that on balance there is sufficient evidence at the time of application that the parties:
A.had a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5(f)(2)(b) of the Act; and
B.had a genuine and continuing relationship, as required by s 5(f)(2)(c) of the Act; and
C.lived together and did not live separately and apart on a permanent basis, as required by s 5(f)(2)(d).
The Tribunal is not satisfied that the requirements of s 5F(2) are met at the time of application. Therefore, the visa applicant does not meet cl 309.221 Schedule 2 of the Regulations. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
Brygyda Maiden
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).

[2023] AATA 763

31 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies