El-Ghourani (Migration)

[2024] AATA 585

El-Ghourani (Migration) [2024] AATA 585 (15 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Mariam El-Ghourani

VISA APPLICANT:  Mr Mohamad Khoder

REPRESENTATIVE:  Mrs Fatme Akkileh (MARN: 1576810)

CASE NUMBER:  2312404

DIBP REFERENCE(S):  BCC2021/1422094

MEMBER:Mila Foster

DATE:15 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 309.211 of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

Statement made on 15 March 2024 at 4:28pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – multiple dates given for marriage – parties are second cousins – no prohibited marriage – child born of the relationship – cohabitation in Lebanon – joint social activities – money transfers – evidence of regular communication – decision under review remitted         

LEGISLATION

Marriage Act 1961, ss 5, 11, 23, 40, 41, 48, 73, 88
Migration Act 1958, ss 5, 65, 360
Migration Regulations 1994, Schedule 2, cls 309.211, 309.221; r 1.15

CASES

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 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 15 July 2021 on the basis that he was in a spouse relationship with the review applicant, his sponsor for the visa. 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211 and 309.221 because the delegate was not satisfied on the evidence before them that the parties were mutually committed to a shared life together as spouses.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the visa applicant was the spouse or de facto partner of the review applicant at the time the visa application was made and continues to be her spouse or de facto partner at the time of decision.

7. The evidence before the Tribunal includes the Department of Home Affairs file relating to the visa application[1], documentary and photographic evidence the review applicant presented to the Tribunal, and written submissions the review applicant’s representative made on review. The Tribunal also has the Department’s movement records relating to the review applicant showing her movements into and out of Australia.

   [1] Department file number BCC2021/1422094.

8. The Department file includes a visa application form completed by the visa applicant on 15 July 2021, three sponsorship forms completed by the visa applicant (a Form 40SP signed on 9 July 2021, and two online sponsorship forms submitted on 15 July 2021 and 20 December 2021),[2] as well as statements made by the visa applicant and the review applicant on 7 September 2021 about the development of their relationship.

   [2] It is not clear why three sponsorship forms were submitted.

   Background and overview of relationship

9. It is claimed that the visa applicant is a 25-year-old Lebanese national by birth who resides in Lebanon.

10. It is claimed that the review applicant is a 20-year-old Australian citizen by birth who resides in Australia. It is claimed that she is also a Lebanese national.

11. The parties claim they are cousins who met on 20 March 2019 in Lebanon at a restaurant where the visa applicant worked and the review applicant had gone to eat with her family having gone to Lebanon for a vacation. It is claimed that the parties went out together after that and on the review applicant’s return to Australia they kept in touch daily by phone for one year. It is claimed that the visa applicant subsequently proposed to the review applicant by telephone and they became engaged. In all except one of the documents submitted in connection with the visa application and review application, it is claimed that the parties became engaged on 7 March 2020.[3]

    [3] In the sponsorship form submitted on 20 December 2021, the review applicant stated that the parties became engaged on 8 December 2020. The Tribunal invited the review applicant to explain this inconsistency. Her representative responded that she could not find the inconsistency and hence no explanation was provided. On page 7 of the sponsorship form submitted on 20 December 2021 the review applicant stated ‘On November 10^th, I came back to lebanon(sic) and planned out(sic) engagement which was on 8^th December 2020’ [Tribunal emphasis].

12. It is claimed that the review applicant wanted to return to visit the visa applicant in Lebanon after they met but she had been unable to do so until 10 November 2020 due to the Covid-19 pandemic.

13. It is claimed that the parties married in Lebanon although the claims and evidence about when they married has been inconsistent with three dates being given for their marriage - 20 December 2020, 23 June 2021 and 1 July 2021.

14. It is claimed that the parties lived together in Lebanon from 20 December 2020 until 31 March 2022.

    Relevant law

15. A visa applicant will satisfy cl 309.211 if, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen: cl 309.211(2). With limited exceptions, a visa applicant who satisfied cl 309.211(2) must continue to be the spouse or de facto partner of the Australian citizen, Australian permanent resident or eligible New Zealand citizen at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen by birth.

16. ‘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.

    The review applicant’s citizenship/immigration status

17. The Tribunal has before it a photocopy of the biodata page of an Australian passport issued to the review applicant in October 2020 which states that she is an Australian national. The Tribunal thus finds that the review applicant is an Australian citizen.

    Are the parties validly married?

18. The Tribunal has before it a copy of a marriage certificate issued on 1 July 2021 by the Lebanese authorities which indicates that the parties entered into a marriage contract on 23 June 2021 and their marriage was registered on 1 July 2021. However, it has also been claimed that the parties married on 20 December 2020[4] and 1 July 2021[5]. The Tribunal thus invited the review applicant to explain this inconsistency. In a response dated 27 February 2024 the representative stated that the parties married ‘in the Islamic way’ on 8 December 2020 and celebrated their Islamic marriage on 20 December 2020, they entered into an ‘official marriage contract’ and ‘married officially’ on 23 June 2021, and the parties’ marriage was registered by the civil registry in Lebanon on 1 July 2021. The representative submitted that it had been incorrectly stated that the parties married on 1 July 2021. Accompanying the response were three documents, originally in Arabic translated into English (not by a NAATI accredited translator):

    a.A letter from Sheikh Omar ZOD dated 14 February 2024 in which he stated that he concluded the parties’ marriage contract according to Islamic law on 8 December 2020 ‘for a prepaid and deferred agree on between the spouses, provided that the legal procedures of the marriage contract shall be concluded at the sharia court according to the laws and regulations in effect’.

    b.A marriage permit issued by the Sharia Sunni Court of Sir in Lebanon on 23 June 2021 giving permission for a marriage contract to be conducted between the parties.

    c.A marriage contract entered into by the parties on 23 June 2021 bearing the seal of the Sharia Sunni Court of Sir and signatures of judicial officers of the court.

    [4] For example, in the written statements made by the parties on 7 September 2021 and the sponsorship form submitted on 20 December 2021 (page 2).

    [5] In the visa application form (page 2) and the sponsorship form submitted on 15 July 2021 (page 2).

19. To determine whether a marriage is valid for the purposes of the Act consideration must be given to the Marriage Act 1961 (Cth) (Marriage Act). The Marriage Act defines marriage as the union of 2 people (of any gender) to the exclusion of all others, voluntarily entered into for life.[6] The Marriage Act requires marriages to be solemnised,[7] and has other requirements for their validity depending on whether they were solemnised under Australian or foreign law.

    [6] Marriage Act s 5.

    [7] Marriage Act ss 23A, 23B, 40, 41, 48, 73.

20. Generally, a marriage certificate establishes that a marriage has been properly solemnised. Section 88G of the Marriage Act provides that a document purporting to be either the original or certified copy of a certificate or record of a foreign marriage is, for all purposes, prima facie evidence of the facts stated in the document and of the validity of the marriage to which the document relates, provided that it is purported to have been issued by the relevant authority of that foreign country who has the authority to issue it. The effect of s 88G is that, unless there is evidence to suggest that the key requirements for a valid marriage are not met, a foreign marriage certificate issued by the relevant authority of that country is prima facie evidence that the marriage is valid under the local law.

21. The Lebanese marriage certificate is prima facie evidence that the parties married each other on 23 June 2021 in a marriage that is recognised under the law of Lebanon. The Tribunal considers the explanations provided for the other dates given for the parties’ marriage to be plausible and supported by documentary evidence. The Tribunal accepts the explanations and finds that there has been no intention to provide false or misleading information about when the parties married. The Tribunal therefore finds that the parties were married to each other on 23 June 2021 in a marriage that was recognised under the law of Lebanon.

22. A foreign marriage that is recognised under the law of the country in which it is solemnised will be recognised in Australia as valid subject to five basic exclusions which would void the marriage,[8] namely:

    ·either of the parties was married to someone else and that other marriage was recognised in Australia as valid,

    ·the parties are within a prohibited relationship,

    ·the consent of either of the parties is not real consent,

    ·where one party was domiciled in Australia at the time of the marriage - either of the parties was not of marriageable age,

    ·the marriage is voidable under the law under which the marriage took place.

    [8] Marriage Act ss 88B, 88C, 88D and 88E.

23. The parties claim that they have had no relationships prior to their marriage. There is no evidence to contradict this claim. The marriage certificate, marriage permit and marriage certificate state that the review applicant is single. They do not state the visa applicant’s marital status. On the evidence and in the absence of any evidence to indicate that the visa applicant was legally married to anyone else, the Tribunal is satisfied that the parties were not married to anyone else when they married each other.

24. A prohibited marriage is a marriage between a person and ancestor (such as a parent or grandparent) or descendent (such as a child) of the person. The parties claimed that they are cousins. Family members of the parties have stated in statutory declarations that the parties are cousins.[9] The representative clarified on review that the parties are second cousins, their mothers being (first) cousins. A marriage between cousins (including second cousins) is not a prohibited marriage. The Tribunal accepts that the parties are second cousins and is satisfied that theirs is not a prohibited marriage.

    [9] For example, statutory declaration made by the review applicant’s mother, Nada Abbas, on 18 June 2021. 

25. There is nothing in the evidence before the Tribunal to indicate that either the visa applicant or the review applicant did not provide real consent to their marriage.

26. Marriageable age in Australia is 18 years of age.[10] Under the Marriage Act, a foreign marriage involving a person not of marriageable age can be recognised in Australia as valid in certain circumstances depending on whether any of the parties to the marriage were domiciled in Australia at the time of the marriage. According to the parties’ official personal documents,[11] the review applicant was 18 years old and the review applicant was 23 years old when they were legally married in Lebanon on 23 June 2021. Hence, both parties were of marriageable age when they married.

    [10] Marriage Act s 11.

    [11] Such as the review applicant’s birth certificate, and the visa applicant’s passports and Family Civil Record.

27. There is no evidence before the Tribunal to indicate that the parties’ marriage is voidable under the Lebanese law under which the marriage took place.

28. For the above reasons the Tribunal finds that the parties were married to each other in Lebanon on 23 June 2021 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?

29. The Tribunal has before it documentary and photographic evidence of the parties’ relationship since its inception.

    Financial aspects of the relationship

30. On the evidence the parties do not jointly own any assets, do not have joint liabilities, have not pooled their financial resources, do not owe any legal obligations to the other party and have not shared day-to-day household expenses. The Tribunal has not drawn an adverse inference from this given the parties are domiciled in different countries.

31. The parties claim that they lived together in Lebanon from 20 December 2021 until 31 March 2022 during which time the visa applicant worked and financially supported the parties. The review applicant’s movement record indicates that she was outside Australia during that time. Evidence of the parties’ claimed cohabitation was submitted which included a copy of a lease entered into by the parties and numerous receipts issued to the parties for ‘internet fees’. However, there is no supporting evidence that the visa applicant financially supported the parties during their claimed period of cohabitation.

32. It was submitted on review that the parties financially supported each other when it has been needed by sending money via money transfers. Money transfer receipts were submitted to the Department and the Tribunal mostly from the review applicant to the visa applicant. However no specific details have been provided about why the money was needed or what it was spent on. Nor has any documentary evidence of the source of the money transfers been provided such as bank records. The Tribunal notes that it has been claimed that the visa applicant worked as a waiter[12] and an accountant[13] while the review applicant has been unemployed[14]  and receiving a government allowance.[15] The Tribunal also notes that at the same time as the review applicant sought a reduction of her review application fee claiming she had $4 in her bank account, owed a friend $1000 and money the visa applicant sent her was not enough to meet her living expenses she also allegedly sent the visa applicant nearly four hundred dollars via money transfer.[16] Thus, it is not clear how the review applicant was able to afford to send the visa applicant money or why he needed her financial assistance given he was working while she was not and he managed to support the parties for the 15 months they lived together. The Tribunal is thus not satisfied that the money transfers particularly those sent by the review applicant are a genuine reflection of the financial aspects of the parties’ relationship.

    [12] Statements made by visa applicant and review applicant on 7 September 2021 and the representative’s submission dated 21 December 2023.

    [13] Form 80 (page 5) signed by the visa applicant on 9 July 2021.

    [14] Psychological report date 22 August 2023 made by Kasim Abaie, a psychologist the review applicant consulted.

    [15] Centrelink statement submitted to Tribunal on 29 August 2023 in support of request for fee reduction.

    [16] Representative submission dated 21 December 2023, page 2.

33. While the claimed financial aspects of the parties’ relationship are consistent with a genuine and committed relationship the evidence provided in support of the claim is not compelling.

    Nature of the household

34. The parties do not have joint responsibility for the care and support of children but claim that they plan to have children together and that the review applicant had a medical check-up to prepare for pregnancy. Medical evidence said to show this was presented however the record were in Arabic and untranslated so they Tribunal can give them no weight.  

35. The Tribunal accepts on the basis of the review applicant’s movement record and the lease that the parties lived together in Lebanon for 15 months. It is claimed that the parties shared household chores however there is only one specific task the visa applicant is referred to as having undertaken – helping the review applicant prepare meals. It was claimed that when he went to work the review applicant did household chores. The Tribunal expects that their cohabitation would have been witnessed by family and friends who could have attested to the nature of their household.

36. While no supporting evidence of the nature of the parties’ cohabitation has been provided the Tribunal finds that a 15-month period of cohabitation is consistent with a genuine and commitment relationship.

    Social aspects of the relationship

37. Official records from Lebanon indicate that the parties have represented themselves to the Lebanese authorities as being married to each other.[17]

    [17] For example, the parties’ Family Civil Record issued on 1 July 2021.

38. The statutory declarations from family and friends, photographs of the parties’ engagement and wedding are strong evidence that the parties represent themselves to other people as being married to each other. The family and friends expressed in their own words why they were of the opinion that the parties were in a genuine, committed and loving relationship.

1. It is claimed the parties’ social activities included visiting the visa applicant’s family and relatives and places such as the snowfields. Limited supporting evidence of this, mainly in the form of annotated photographs, has been provided. The Tribunal expects that family and friends could have attested to the parties’ social activities.

2. The Tribunal finds that the social aspects of the parties’ relationships particularly the opinions of family and friends about the parties’ relationship is indicative of a genuine relationship.

   Nature of persons' commitment to each other

3. The parties have been married for over 2½ years. The wedding celebration on 20 December 2020 indicates that they have been committed to each other for over 3 years. These are not especially long periods of time. However, the Tribunal regards as significant that they have lived together for 15 months during that time.

4. A considerable volume of evidence said to be of text messages exchanged by the parties and phone calls they have made to each other have been presented. Except for a very small number the messages are in Arabic. It is hard to understand why translations of a relevant sample of the messages was not submitted. Hence, while some of the messages contain emojis that give an indication of the nature of the parties’ communication, their precise content is unknown. Nevertheless, they give some indication of communication between the parties over a period of time. There are heart emojis, expressions of love and of missing each other.

5. The Tribunal does not have recent evidence from the parties themselves about their commitment to each other or the emotional support they draw from each other. However, the representative stated in her submission of 21 December 2023 that the parties were deeply committed to each other and they intended to have children together. A number of the parties’ family and friends referred in their statutory declarations to the parties’ commitment to each other, how much they missed each other and their plans to have children. The Department file contains two emails from the review applicant asking that the processing of the visa application be sped up as she needed the visa applicant’s support, it seems, because she said she was caring for her mother. Medical evidence was submitted on review that the review applicant has depression due, in part, to her separation from the visa applicant.[18]

   [18] Psychological reports by Karim Abaie dated 22 August 2023 and 10 October 2023.

6. Overall, there are aspects of the parties’ commitment to each other which is consistent with a genuine and committed relationship.

   Conclusion

7. Having regard to the totality of the evidence and all aspects of the parties’ relationship the Tribunal is satisfied that, since marrying on 23 June 2021, the parties have had a mutual commitment to a shared married life together to the exclusion of all others, their relationship has been genuine and continuing, and they have not lived separately and apart on a permanent basis. The Tribunal therefore finds that at the time the visa application was made and at the time of this decision, the visa applicant was the spouse, as defined in s 5F, of the review applicant.

   Conclusion on spouse / de facto criterion

8. As the visa applicant was the spouse of the review applicant, an Australian citizen, at the time of application and continued to be her spouse at the time of decision he meets cl 309.211 and cl 309.221. The appropriate course is thus to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

   DECISION

9. 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

   Mila Foster
   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).