Dennaoui (Migration)

[2020] AATA 2211

Dennaoui (Migration) [2020] AATA 2211 (13 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Nancy Dennaoui

VISA APPLICANT:  Mr Fouad Taha

CASE NUMBER:  1729468

DIBP REFERENCE(S):  OSF2014/006811

MEMBER:Russell Matheson

DATE:13 March 2020

PLACE OF DECISION:  Sydney

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

·cl.309.211, cl.309.212 and cl.309.213 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 13 March 2020 at 8:28am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and ongoing relationship – limited sharing of financial resources – evidence of regular communication – social recognition of the relationship – birth, care and support of their child – plans to purchase their home – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5F, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.212, 309.213, 309.221; r 1.15

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 October 2017 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 (the applicant) is a 31-year-old male national of Lebanon. He applied for the visa on 27 August 2014 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional)). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309. 211 because the delegate was not satisfied the applicant is the spouse of the sponsor.  

4. The review applicant (the sponsor) appeared before the Tribunal on 4 March 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant and the sponsor’s mother.

5. The review applicant was represented in relation to the review by her registered migration agent.

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

   Background

7. The applicant is a 31-year-old male from Bhanine, Lebanon.  He claims that he has not previously been married prior to his current marriage with the sponsor. His parents and seven siblings reside in Lebanon; two brothers live in Australia. The applicant arrived in Australia on a sponsored Family Visitor visa in 2012 and subsequently applied for a [permanent] visa in November 2012, which was refused in 2013. The applicant departed Australia in June 2014.

8. The sponsor is a 29-year-old female born in Kogarah, Australia. She is currently employed as a teacher at Lurnea High School. She has previously been married and divorced in October 2013. There are no children from her previous relationship.

9. The applicant and sponsor first met in August 2013 and were engaged in November 2013 before marrying in January 2014. The sponsor gave birth to a child from the relationship in November 2019. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. The Tribunal has before it the Department file relating to the applicant; its own file; and a copy of the Department’s decision provided by the sponsor to the Tribunal.

12. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

    Hearing

13. At the beginning of the Tribunal hearing the Tribunal told the applicant that certain information in the Department file is the subject of a s.376 certificate. The Tribunal told the applicant it has considered the certificate and finds that the certificate is valid.

14. The Tribunal told the sponsor the certificate prevents the Tribunal disclosing any document, matter or information referred to in the certificate as it would be contrary to the public interest because it was given to the Minister or an officer of the Department in confidence. As disclosure of the identified material is  subject to the Tribunal’s discretion, the Tribunal informed the sponsor that:

    (a)  Folio’s 99 and 148 contain the identifying signature of the allegation and to disclose this may enable a person to ascertain the existence or identity of, a confidential source.

15. The Tribunal told the sponsor that it had considered the information that is the subject of the certificate and is of the view that as the information is relevant to this case and relates to an allegation that the applicant and sponsor have entered into a contrived marriage, the source of the information expects anonymity. The Tribunal considers the information the subject of the s.376 certificate relevant to this review. 

16. The Tribunal provided a copy of the certificate to the sponsor and asked the applicant if she wished to comment on or respond to the validity of the s.376 certificate. The sponsor did not comment on the validity of the certificate.

17. In accordance with s.359AA, the Tribunal put to the sponsor the information subject to the s.376 certificate that it would consider to be the reason or part of the reason for affirming the decision.  The Tribunal explained the relevance and the consequences of the information and invited the applicant to comment on or respond to the information. The Tribunal also told the sponsor that she could respond to that information orally or in writing or she could seek additional time to comment on or respond to it.

18. The Tribunal told the sponsor the information contained at folio’s 99 and 148 in the Department’s file alleges that:

    ·The sponsor had been paid by the applicant to enter into a contrived marriage to obtain a partner visa.

19. The sponsor responded orally that she doesn’t need any money and that she had not entered into a contrived marriage with the applicant and that the parties were in a genuine and continuing spousal relationship.

20. The applicant, when asked, also refuted the allegation, stating that he did not pay the sponsor to get a visa and that he was looking forward to living a long life together with the sponsor and their child.

21. There is no other evidence before the Tribunal to indicate the applicant entered into a contrived marriage with the sponsor and the Tribunal places no weight upon the anonymous (signature only) allegation that is the subject of the s.376 certificate. The Tribunal informed the applicant of its decision not to place any weight on the allegation at the hearing.

22. Additionally, the Tribunal informed the sponsor that certain information in the Department file is the subject of a s.375 certificate. The Tribunal provided a copy of the certificate to the sponsor and she wished to comment on or respond to the validity of the s.375 certificate. The sponsor did not comment on the validity of the certificate.

23. The Tribunal told the sponsor the certificate prevents the Tribunal disclosing any document, matter or information contained in folio’s: 103, 104, 121, 122, 124, 172, 176 and 178 of file number OSF2014006811 as it would be contrary to public interest because:

    (a)  It would prejudice the security, defence or international relations of Australia.

24. The Tribunal informed the sponsor that it would not disclose the information the subject of the s.375 certificate. The Tribunal informed the sponsor it did not consider the information subject to the certificate relevant to the hearing. The Tribunal places no weight on the information subject to the certificate.

    Whether the parties are in a spouse or de facto relationship

25. 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 an Australian citizen.

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

    Are the parties validly married?

27. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of the marriage certificate indicating the parties were married under the Marriage Act 1961 at Greenacre, New South Wales on 2 January 2014. There is no evidence before the Tribunal to indicate that the marriage is not valid.  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).

28. After careful consideration of all of the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below, the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3), and the reasons for its decision.

29. The Tribunal had the benefit of the applicant’s and the sponsor’s oral evidence. The Tribunal gave all the evidence provided by the parties and the witness (the sponsor’s mother) at the Tribunal hearing and the information contained in the Departmental and Tribunal files due regard. The Tribunal considered evidence given by the sponsor and the applicant to be persuasive and overall credible.

30. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant and the sponsor in the course of the hearing and the Tribunal is satisfied that the explanations offered are plausible.

    Are the other requirements for a spouse relationship met?

    Financial aspects

31. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, whether any person in the relationship owes any legal obligation in respect of the other, and the basis of any sharing of daily household expenses and any combined future financial commitments or plans.

32. The sponsor gave evidence that she works full-time as a personal development, health and physical education teacher and is currently on maternity leave. The applicant gave evidence that he currently manages a restaurant in Lebanon. The parties provided evidence that they had established a joint account with the Commonwealth Bank Australia (CBA) in January 2014 after marrying and also maintained their own personal accounts addressed to their Lurnea address. The sponsor stated that she has supported the applicant financially since June 2014 after he was required to leave Australia. The sponsor provided evidence of money transfers sent to the applicant from May 2015 to September 2019 totalling $6,579.85 that she sent to the applicant through her mother after withdrawing the money from her savings account. She further stated that she has also been paying the applicant’s Vodafone account since he left Australia. The sponsor also gave evidence that the applicant is a low income earner in Lebanon but has been transferring money into the joint account when he can to support their child, born in November 2019. She further stated that the applicant sent $500 in September 2019 and $500 in January and March 2020.

33. The sponsor gave evidence that she has been to Lebanon on two occasions to visit the applicant. She further stated that she lived with the applicant for five weeks from December 2017 to January 2018 and three and a half months from January to April 2019. The applicant gave evidence that he took the entire time off work and used the money he saved to pay for the day-to-day living expenses during the sponsor’s visits.  The sponsor claimed that the applicant, since returning to Lebanon, has built an apartment for the couple to live in when the sponsor visits with her family. The sponsor also stated that she has made a $3,000 contribution to the construction of the apartment and the couple have purchased household items for the apartment. The sponsor told the Tribunal the applicant has receipts for the household purchases in Lebanon. The Tribunal accepts that the parties are prepared to share their financial resources.

34. The applicant and sponsor provided limited evidence regarding the financial aspects of their relationship, including evidence of any pooling of financial resources, sharing of day-to-day expenses or shared financial commitments for their life together as spouses.

35. The parties have no joint liabilities or major assets together. There is little evidence before the Tribunal to indicate that the parties share or pool their financial resources. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. There is little evidence before the Tribunal to support that the parties share day-to-day living expenses or pool their financial resources.

    Nature of the household

36. The Tribunal has considered the nature of the household including any joint responsibility for the care and support of children if any, living arrangements of the parties and the sharing of the responsibility for housework.

37. The Tribunal accepts there is a degree of difficulty in establishing a joint household when the parties live in separate countries at the present time. The parties provided evidence to the Tribunal of living together in Australia with the sponsor’s parents’ from January to June 2014.

38. The parties provided limited documents including, joint and individual CBA bank statements, Vodafone bills and a National Police Certificate criminal history check for the applicant addressed to their Lurnea address when they were living together in Australia.

39. The parties gave evidence and the sponsor submitted that when living together in Australia the household duties and responsibilities were shared between the couple and the sponsor’s parents. The parties claim to have shared the household responsibilities’ such as cleaning, cooking, washing, cleaning the balcony and taking out the garbage when living together in Lebanon for five weeks from December 2017 to January 2018 and three and a half months from January to April 2019.  The sponsor’s mother also provided evidence of the parties cohabiting in Australia and Lebanon. The sponsor gave evidence that although the applicant is not physically able to support their child at present, he supports her financially and they communicate on a daily basis through text messages, phone calls, face time, WhatsApp and Viber sharing their daily experiences with their child. The sponsor provided a copy of the birth certificate of the child born to the relationship indicating the applicant and sponsor as the parents.

40. The applicant and sponsor provided evidence that they have notified government agencies such as Centrelink and the Australian Tax Office that they are in a spousal relationship. The parties also provided documentary evidence registering themselves as spouses in Lebanon and provided a copy of a letter from the Mayor of Bhanin acknowledging that the parties cohabited in Lebanon on the two occasions the sponsor has visited the applicant.

41. Based on the evidence presented by the parties, the Tribunal accepts that they lived together, have established a joint household together and shared the responsibility of the housework when the parties were together in Australia and Lebanon. The Tribunal accepts that the applicant provides some financial care and support to their child. The Tribunal places some positive weight on this aspect of the relationship.  

    Social aspects

42. The Tribunal considered the social aspects of the relationship, including whether the 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 parties plan and undertake social activities.

43. The parties have provided a selection of photos taken of themselves with each other, with friends and family and on different occasions in both Australia and Lebanon. The photos indicate that the applicant and the sponsor have undertaken some joint social activities, have been in the company of each other’s friends and families and have travelled together. The Tribunal has given some weight to the submitted photographs as evidence of the social aspects of the claimed relationship. The parties provided evidence of attending family events, dinner parties, the football (Bulldogs games), a staff faculty party of the sponsor and other school functions when the applicant was living in Australia. The parties provided documentary and oral evidence of a cruise/shopping tour to Turkey and flight itineraries for the sponsor’s travel to Lebanon. The parties provided limited statements attesting to the genuineness of their relationship to the Department and Tribunal. The Tribunal acknowledges the statement from Mrs B, the sponsor’s friend and workmate, who attended the parties’ wedding and who is in constant contact with the parties. Mrs B’s statement gives a strong insight into the inception and development of the parties’ relationship first hand and the Tribunal places some positive weight on the statement. The Tribunal accepts on the evidence provided the parties’ relationship is supported by both their families.

44. Overall, the Tribunal accepts the applicant and the sponsor plan and undertake social activities and travel together. The Tribunal is satisfied that the parties represent themselves to family, friends and other people as being in a marital relationship. The Tribunal is satisfied that family, friends and relatives view the relationship as a genuine and committed one.

    Commitment

45. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length and time the parties have lived together, the degree of companionship and emotional support they provide each other, and whether the parties view the relationship as a long-term one.

46. The applicant and sponsor claim to have first met in August 2013 and were engaged in November 2013 before marrying in January 2014. They have provided a copy of their marriage certificate registered in Australia on 2 January 2014. The Tribunal accepts the parties are lawfully married and have been in a relationship for over six years.

1. The sponsor provided evidence that she had planned to visit the applicant after he departed Australia in 2014 on numerous occasions in Lebanon but was unable to do so due to obstacles she faced at the time. She gave evidence that her mother was [suffering a medical condition] and undertaking [specified treatments] during 2014 and 2015. The sponsor further stated that her mother had numerous other health issues including diabetes, rapid heartbeats, hypertension and arthritis and she provided care and support to her mother and also worked. She also stated that other issues such as it was not safe to travel to Lebanon for a period of time and she was on probation at work after being granted a full-time permanent job as a teacher from March 2015 to March 2017. However the sponsor was able to travel to Lebanon to live with the sponsor at his family home from 1 January 2019 to 15 April 2019 and during this time fell pregnant. The sponsor gave evidence that during times of separation the couple have remained in contact daily via calls and text messages (WhatsApp and Viber).  

2. In November 2019, the sponsor gave birth to the couple’s daughter at Liverpool Hospital, NSW. The sponsor provided to the Tribunal as evidence a copy of the child’s birth certificate indicating that the applicant and sponsor are the parents of the child. The Tribunal accepts that the birth of a child is a significant event, and that it is preferable for the children to have both parents involved in their care. The Tribunal considers that the birth of child of the relationship, and a child who is an Australian citizen by birth, combined with the positive effect of the emotional, practical and physical support that the applicant provides to the wellbeing of the sponsor and the early years of raising the child, benefits the whole family. The Tribunal considers that a loving, stable, responsive relationship is fundamental to the child’s development. The Tribunal considers the birth, care and support of a child born to the relationship a long term commitment to a shared life together.

3. The parties gave evidence that they intend to live together and establish their own household and eventually purchase their own home when financially secure and they intend to be independent from other family members in Australia and live together as a family unit. The parties also provided evidence of committing to their relationship stating that they would be prepared to relocate and live in Lebanon with the applicant and raise their daughter if the applicant fails in his attempt to be granted a partner visa. The sponsor further stated that she accepts that quality of life in Lebanon would not be as good and this would affect their child’s education but she was prepared to make the commitment because she has previously been in a difficult/abusive relationship and she has found love. The Tribunal found the sponsor to be very genuine when describing her commitment to the relationship.  

4. The parties presented documentary evidence of continued daily contact during periods of separation and a sound knowledge of each other’s lives, family, living arrangements, health issues, personal history and future together. The evidence of communication between the parties is significant and the Tribunal considers the parties’ knowledge of one another and their everyday concerns is a function of this communication.

5. The Tribunal is satisfied that the parties see their relationship as stable, mutually supportive and a long-term one. The Tribunal considers their evidence with regard to their commitment to each other plausible, persuasive and genuine.

6. The Tribunal is satisfied the applicant and the sponsor provide each other with a degree of companionship and emotional support that is commensurate with a couple being in a genuine and continuing relationship. The Tribunal is satisfied the couple view their relationship as a long-term one.

7. The Tribunal is satisfied, having regard to the totality of the circumstances and the evidence provided that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is a genuine and continuing relationship and that they do not live separately and apart on a permanent basis.

   Findings

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

9. 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. Therefore the visa applicant meets cl.309.211(2) and cl.309.221.

10. There is no evidence before the Tribunal that the spouse of the applicant is prohibited from being the sponsor of the applicant. The Tribunal is satisfied that the sponsor at the time of the visa application was an Australian citizen who had turned 18. Therefore the applicant meets cl.309.212 and cl.309.213. 

11. 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

12. 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, cl.309.212 and cl.309.213 of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Russell Matheson
    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).

    he spt