Daher (Migration)

[2024] AATA 2077

Daher (Migration) [2024] AATA 2077 (1 March 2024)

CORRIGENDUM

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ibrahim Daher

VISA APPLICANT:  Mrs Riham Elmoustafa

REPRESENTATIVE:  Dr Mahmoud Ajjawi (MARN: 9900118)

CASE NUMBER:  2313882

HOME AFFAIRS REFERENCE(S):          BCC2021/607819

MEMBER:David Barker

DATE:1 March 2024

DATE CORRIGENDUM SIGNED:            17 May 2024

PLACE OF DECISION:  Sydney

AMENDMENT:  The following corrections are made to the decision:

1. The first sentence in Paragraph 38 of the Tribunal's Decision Record should read as follows: - The Tribunal notes the marriage certificate is an indicator the parties have represented themselves to the Lebanese authorities as a couple.

David Barker
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ibrahim Daher

VISA APPLICANT:  Mrs Riham  Elmoustafa

REPRESENTATIVE:  Dr Mahmoud Ajjawi (MARN: 9900118)

CASE NUMBER:  2313882

DIBP REFERENCE(S):  BCC2021/607819

MEMBER:David Barker

DATE:1 March 2024

PLACE OF DECISION:  Sydney

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

·cl 309.211of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

Statement made on 01 March 2024 at 10:02am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – each party previously married and divorced – families known to each other in same area – validly married in home country – living in different countries for most of time since – applicant living with sponsor’s sister in sponsor’s family home – financial aspects of relationship – sponsor’s regular remittances to applicant – economic circumstances – limited household and social aspects of relationship – nature of commitment – length of relationship and communication – plausible and credible evidence – supporting statements – decision under review remitted

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

CASE
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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 9 August 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 30 June 2021 on the basis of her relationship with her sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 because they were not satisfied the evidence demonstrated that the applicant is the spouse, as defined in s 5F of the Act, of the review applicant (hereafter referred to as the sponsor).

4. The sponsor appeared before the Tribunal on 15 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant.

5. The sponsor was represented in relation to the review.

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

   BACKGROUND

7. The applicant is a national of Lebanon and is 31 years old. The applicant declares one prior marriage, from July 2009 to October 2013. That marriage ended in divorce with two children from the relationship, born in January 2011 and March 2012.

8. The sponsor is also a national of Lebanon and is 43 years old. He first arrived in Australia in May 2005 on a Subclass 679 temporary Sponsored Family Visitor visa. The sponsor declares one prior marriage, from June 2008 to March 2014. That marriage ended in divorce, with one child from the relationship born  in December 2009. The sponsor migrated to Australia through his marriage to his ex-wife. He was granted  a Subclass 300 Prospective Marriage visa in 2008, followed by Subclass 820 and 801 partner visas. He became a permanent resident of Australia on grant of the Subclass 801 visa in December 2010.

9. Information on the visa application indicates that the applicant and sponsor (hereafter referred to as the parties) met on 15 June 2013 in the family home of the applicant in Akkar, North Lebanon. At hearing the parties added that they come from the same area in the Akkar district and that their families had known each other for a long time. The sponsor gave evidence that he and the applicant would have met as children when the applicant was around 11 years old and that their meeting in 2013 occurred when he was visiting Lebanon after the failure of his previous marriage in Australia. It is contended the applicant was at that time also single following the failure of her first marriage and that the parties subsequently committed to a shared life together to the exclusion of all others on 15 October 2013. The parties registered their marriage in Akkar, North Lebanon on 15 May 2014.

10. The parties provided documents to the Department in support of the application, including but not limited to the following:

    • Evidence of identities and relationship status;
    • Marriage registration certificate issued by Lebanese authorities;
    • Written statements prepared by the applicant and sponsor, undated;
    • Finance remittance receipts  from the sponsor to the applicant;
    • Receipts of purchases
    • Travel records;
    • Electronic communication records;
    • Photographs.

11. Prior to the hearings the sponsor provided documents to the Tribunal including, but not limited to:

    ·Photographs;

    ·Sponsor statutory declaration, undated;

    ·Sponsor written statement, undated;

    ·Travel records;

    ·Electronic communication records

    ·Finance remittance receipts / records.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the sponsor and applicant were in a genuine spousal relationship at the time of application and continue to be in a genuine spousal relationship at the time of this decision.

    Whether the parties are in a spouse or de facto relationship?

13. 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 a permanent resident of Australian citizen.

14. ‘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.

    Are the parties validly married?

15. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship.

16. The Department file contains a copy of a marriage certificate (with translation) issued by the Ministry of the Interior and Municipalities – Republic of Lebanon, which indicates the applicant and sponsor registered their marriage in the Akkar District of North Lebanon on 15 May 2014. The Department file also contains  a divorce certificate, dated 22 October 2013, pertaining to the dissolution of the  applicant’s previous marriage  and a divorce order, dated 26 February 2014, pertaining to the dissolution of the sponsor’s previous marriage. The Tribunal has no reason to doubt the authenticity of these documents.

17. 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?

    Financial aspects of the relationship

18. In considering the financial aspects of the parties’ relationship, the Tribunal recognises that the parties have resided in different countries and that this can influence the extent to which they have combined their finances.

19. The Tribunal has considered the financial aspects of the parties’ relationship, including: joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

    Joint ownership of real estate or other major assets

20. The evidence does not demonstrate that the parties own any property together. This was acknowledged in the sponsor’s evidence at hearing. There is no evidence of other jointly owned assets of any significance.

    Joint liabilities

21. The evidence does not demonstrate that the parties have shared liabilities. This was acknowledged in the sponsor’s evidence at hearing.

    The extent of any pooling of financial resources, especially in relation to major financial commitments

22. The parties gave consistent evidence at hearing that the applicant has been reliant on funds sent to her by the sponsor since the time  of their marriage in 2014. She has no other source of income and it is reported that prior to their marriage the applicant resided with her parents and was supported by them within her family household. It is reported that  both of the applicant’s parents  are now deceased. The sponsor explained that  both of his parents are deceased and that the applicant resides in his family home in Lebanon, along with his sister.

23. The sponsor contends that his sending funds to the applicant on a regular weekly or fortnightly basis is evidenced by the remittance receipts filed in association with the review application. It is claimed that the sponsor has remitted funds in excess of $25,000 to the applicant since their marriage in 2014.[1] The Tribunal’s assessment of the remittance receipts from Western union and Moneygram show that a cumulative amount of $18,112.33 was remitted to Reham Al Moustafa between February 2015 and February 2024.

    [1] Submissions  of Mahmoud Ajjawi dated 6 December 2023 and referred to in psychology report of Dr Mahmoud Abu-Arab dated 30 October 2023.

24. Whilst this cumulative amount is not large when considered that it encompasses a nine year period, the receipts do show the funds were remitted on a frequency consistent with the parties’ claims. The Tribunal  notes that the sponsor explained that remitted funds are drawn as US dollars by the applicant and that in light of the economic circumstances in Lebanon  this results in the applicant having good spending power from the remitted funds in comparison with local currency in Lebanon. The Tribunal considers this contention reasonable and also considers it plausible that the sponsor has met the parties shared expenses when he has been in Lebanon since 2014, including for the approximate six month period  immediately after the parties marriage. In the view of the Tribunal this provides a plausible explanation for why the evidence shows the sponsor commenced remitting funds to the applicant in or around February 2015 and not from an earlier date.

    Whether one person in the relationship owes any legal obligation in respect of the other

25. There is no indication and there is no claim that the parties have any legal obligation with respect to each other.

    The basis of any sharing of day-to-day household expenses

26. As  referred to above, the parties gave consistent evidence that the applicant is reliant on funds sent to her by the sponsor to pay for her day-to-day household expenses, such as groceries, clothes, medical expenses and costs associated with running a car.

    Overall assessment of the financial aspects of the parties’ relationship

27. The delegate expressed concern that evidence of remitted funds did not clearly identify the sender or receiver of the funds. The Tribunal’s assessment of the currently available evidence does not lead it to the same conclusion. Funds remitted to persons other than the applicant were not included in the Tribunal’s assessment of the cumulative amount sent to the applicant and the receipts clearly show the ‘sender’ of the funds is the sponsor.

28. The Tribunal considers the financial aspects of the parties’ relationship to be not unusual for a couple in their particular circumstances, who reside in different countries and with the applicant’s home country having very disrupted and challenging economic circumstances. The Tribunal has perceived nothing untoward about the financial evidence provided in association with the visa and review applications and considers the financial aspects of the relationship to provide support to a contention the parties are in a genuine spousal relationship.

    The nature of the household arrangements

29. In considering the nature of the parties’ household, the Tribunal recognises that the parties have resided in different countries and that this can influence the nature of their household arrangements.

30. The Tribunal has considered the nature of the parties’ household, including: any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

    Joint responsibility for the care and support of children

31. The applicant and sponsor have no children from their current relationship. They both have children from their previous marriages, however those children are in the care and are supported by their other parents. There is no claim that the parties have responsibility for the care and support of children, either jointly or separately.

    The living arrangements of the parties

32. The sponsor resides in rental accommodation in Bankstown, NSW . The applicant resides with the sponsor’s sister in the sponsor’s family home in Lebanon.

33. The parties claim to have established a shared household together  for around a six month period following their marriage in 2014 and that the sponsor has spent time with the applicant during trips made by him to Lebanon since their marriage. The Tribunal is satisfied that this is a plausible  claim on the part of the parties and notes that it is consistent with the records of the sponsor’s offshore movements which are available to the tribunal.

    Sharing of the responsibility for housework

34. This particular aspect is not in the view of the Tribunal indicative of the nature of the parties’ relationship. They live in different countries and have not established a shared household together. The Tribunal has given no weight to this factor.

    Overall assessment of the nature of the parties’ household arrangements

35. The parties gave consistent evidence that the applicant will move into the sponsor’s rental accommodation  in Bankstown  if the visa is granted and that the couple will live there until such time as they have a need and are in a position to move to alternate rental accommodation or buy their own home.

36. The Tribunal perceives nothing implausible about these anticipated future household arrangements. In the overall circumstance where the applicants have no shared responsibility for the care and support of children but have cumulatively spent a reasonable amount of time in each other’s company since their marriage, the Tribunal considers it appropriate to attribute some positive weight to this aspect of their relationship.

    The social aspects of the relationship

37. The Tribunal has considered the social aspects of the parties’ relationship, including: whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

    Whether the persons represent themselves to other people as being in a married relationship with each other

38. The Tribunal notes the marriage certificate is an indicator the parties have represented themselves to the Turkish authorities as a couple. The Department file also contains evidence that the applicant is registered on the sponsor’s family civil register with the Ministry of the interior and Municipalities in Lebanon.

    The opinion of the parties’ friends and acquaintances about the nature of the relationship

39. The Tribunal  has reviewed the Form 888 witness statutory declarations provided in association with the visa application. With respect to a declaration of Ghassan Dandachli, a friend of the sponsor who is residing here in Australia, whilst it is apparent this person has not met the applicant in person I am satisfied Mr Ghassan displays a level of insight into the applicant’s circumstances in Lebanon which goes beyond the superficial. I have therefore given some weight to the opinion of Mr Ghassan as to the parties been in a genuine relationship in or around May 2021 when the declaration was made. In relation to the witness declaration of Ali Ahmad Ali, a friend of the sponsor, I am satisfied that the sponsor  has represented himself to Mr Ali as married to and in a  committed relationship with the applicant. However, I give less weight to this declaration, as it is apparent Mr Ali has formed his opinion of the parties’ relationship through what the applicant has told him, rather than from his own interactions with the sponsor and applicant.

40. No witness statements or declarations were provided to the Tribunal in association  with the review application.

41. The Tribunal has reviewed photographs provided in association with both the visa and review application. These predominantly show the parties in each other’s company but there are a number of photographs with other people, some taken quite recently, which the sponsor was able to identify as members of their respective extended families in Lebanon.

42. On the basis of the witness evidence and the photographic evidence provided in association with the visa and review applications, the Tribunal is satisfied the parties represent themselves to members of their families  and acquaintances as a couple in a spousal relationship. The Tribunal’s review of other photographic evidence filed in support of the review leads to satisfaction the parties have spent time together and in the company of relatives in a variety of contexts over the period since they married in 2014.

    The basis on which the parties plan and undertake joint social activities

43. The cumulative evidence before the Tribunal, consisting of the sponsor’s movement records, photos, travel records, statements and oral evidence at hearing, indicates the parties have spent time together as a couple since their marriage in 2015.

1. The parties gave consistent oral evidence regarding their activities when they are together, with their being a focus on spending time in their own company, or with relatives.

   Assessment of the social aspects of the parties’ relationship

2. The Tribunal is satisfied the parties represent themselves to family and other people as a couple in a spousal relationship. The Tribunal is also satisfied their activity together during times the sponsor has been in Lebanon  since 2014 and at times they have travelled together within Lebanon is indicative of two people who are a couple.

3. The Tribunal has placed weight on the social aspect of the parties relationship.

   The nature of the persons’ commitment to each other

4. The Tribunal has considered the nature of the parties’ commitment to their relationship, including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

   The duration of the relationship

5. The parties married in May 2014, providing a relationship duration of nearly 10 years. The Tribunal has placed weight upon this factor.

   The length of time during which the persons have lived together

6. With the exception of the periods in which the parties have been together when the sponsor has visited Lebanon, the parties have not had the opportunity to establish a shared household and live together. The Tribunal has therefore given only quite  limited weight to this factor, reflective of the actual length of time during which the parties have lived together.

   The degree of companionship and emotional support that the persons draw from each other

7. [Redacted.]

8. The Tribunal is satisfied that it is appropriate to give positive weight to the evidence of the parties’ electronic communication with each other  and upon the parties oral evidence at hearing about their feelings for each other, as indicators that there is emotional support and companionship in their relationship.

   Whether the persons see the relationship as a long term one

9. The parties gave consistent evidence, which the Tribunal found credible, that they wish to be united in Australia and that they see their relationship as long term.

   Assessment of the companionship aspects of the relationship

10. The Tribunal has given positive weight to the duration of the relationship, that the applicant and sponsor both see the relationship as long term and have congruent life goals for this stage of their lives, and to the degree of emotional support and companionship evidence in their relationship. The Tribunal is satisfied that the applicant and sponsor present as two  people in a supportive couple relationship. The Tribunal has placed weight on the commitment aspect of the parties’ relationship.

    Overall assessment of the spousal relationship 

11. In this matter the Tribunal has placed weight on the evidence provided at hearing by the applicant and sponsor. The Tribunal considers this evidence plausible, reliable and credible.

12. Having regard to all the circumstances of this relationship, the Tribunal is satisfied that the applicant and his sponsor are in a genuine and continuing relationship, that they have a mutual commitment to a shared life to the exclusion of all others, and that they live together, or not separately and apart, on a permanent basis.

13. 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.

14. Given these findings the Tribunal is satisfied that at the time the visa application was made and at the time of this decision the parties were in a spousal relationship. At the time of the application, the applicant was sponsored by the sponsoring partner who had turned 18 years of age. She continues to be sponsored by her sponsoring partner.

15. Therefore, the applicant meets cl.309.211 and cl.309.221.

16. 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

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

    ·cl 309.211 of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations

    David Barker
    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).