EL HAJ (Migration)

[2021] AATA 5063

EL HAJ (Migration) [2021] AATA 5063 (17 December 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Riad EL HAJ

VISA APPLICANT:  Ms Iman EL BEYROUTI

CASE NUMBER:  1822133

DIBP REFERENCE(S):  OSF2017/007977

MEMBER:Mila Foster

DATE:17 December 2021

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 17 December 2021 at 3:13pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – parties divorced and remarried – shortcomings in the evidence submitted – limited money transfers – joint social activities – decision under review remitted   

LEGISLATION

Migration Act 1958, ss 5, 65
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 Immigration on 25 May 2018 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 20 October 2017 on the basis of her relationship with 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). Relevantly, cl 309.211(2) and 309.221 require that at the time the visa application was made and at the time of 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211(2) due to insufficient evidence that the visa applicant was the spouse of the review applicant as claimed.

4. The review applicant appeared before the Tribunal via video from Lebanon on 14 October 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

5. The review applicant was represented in relation to the review by registered migration agent Nuha Bayad. The migration agent did not attend the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the visa applicant and review applicant (the parties) are spouses as defined in the Act.

   Summary of claims and evidence

7. The evidence before the Tribunal includes the Department of Home Affairs (the Department) file relating to the visa application[1] which contains a record of separate interviews conducted with the parties on 29 January 2018, documentary and photographic evidence submitted to the Tribunal, and oral evidence the parties gave at the Tribunal hearing. While this decision does not refer to all the evidence before it, the Tribunal has had regard to all the evidence.

   [1]Department file number OSF2017/007977.

8. According to the claims presented, the review applicant is a 51-year-old citizen of Australia, France and Lebanon. From January 2020 he has resided in France and prior to that he had resided in Australia since 2011. The visa applicant is a 38-year-old citizen and resident of Lebanon. The parties claim they began communicating by telephone in March 2016 and met in Lebanon on 26 May 2016. They claimed they subsequently married, divorced and remarried on 11 May 2017. They divorced and remarried because the review applicant was not legally divorced under Australian law from his second wife when he first married the visa applicant.[2] Prior to marrying the review applicant, the visa applicant had not been married. The review applicant claims to have been married twice before his marriage to the visa applicant – those marriages ended by divorce. He has a 19-year-old son from his first marriage. His son has lived with his mother in France since his parents divorced. The review applicant claims he went to France in January 2020 because his son’s mother, his former first wife, told him she could no longer control their son and he should ‘come and get his son’.[3]

   [2] Referred to at interview, expanded upon at hearing.

   [3] Stated at hearing.

9. It does not appear to the Tribunal that the visa application was prepared with a great degree of care. There was cogent information that was not provided, such as the fact the parties had married twice, and there are significant inconsistencies in the information and evidence provided. On review, no written statement from the review applicant was presented nor any written submissions made by the migration agent addressing the issues raised in the delegate’s decision record. Almost none of the photographs submitted to the Tribunal were annotated to indicate when the photographs were taken, who was in the photographs or what they showed. Numerous pages of phone messages[4] said to have been exchanged between the parties were submitted to the Tribunal. However, they were in Arabic and hence what the messages contain was not apparent to the Tribunal. Other untranslated documents were also submitted even though information on the Tribunal website, in Tribunal correspondence and the Tribunal’s practice directions state that English translations of documents in other languages should be provided. The review applicant’s previous migration history (he acquired French and Australian residence and then citizenship by marrying nationals of those countries), his travel history (he has resided in Australia and France for longer periods than in Lebanon since marrying the visa applicant despite being a citizen of Lebanon) and the less than satisfactory nature of the evidence before the Tribunal prior to the hearing raised doubts about the genuineness of the parties’ relationship. Further, the oral evidence the parties gave at the hearing was not compelling. It often lacked precision, clarity and consistency. However, the Tribunal has concluded that this was not due to an intention by the parties to mislead or deceive the Tribunal about the true nature of their relationship. Instead, it seemed the result of a lack of regard or appreciation about the importance of providing precise and accurate information.

   [4] In Arabic.

10. Despite the shortcomings in the evidence, the Tribunal is satisfied for the reasons given below and when considering the evidence as a whole that the parties are in a spouse relationship and that the matter should be remitted for reconsideration.

    Is the review applicant an Australian citizen?

11. According to Department records the review applicant was granted Australian citizenship on 29 June 2016.[5] The Tribunal thus finds that the review applicant was an Australian citizen at the time of application and is an Australian citizen at the time of decision.

    [5] Department file, f.119.

    Are the parties in a spouse relationship?

12. ‘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 r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

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

14. According to the claims and evidence the review applicant married Hana Shalak in Lebanon on 31 July 2000. Ms Shalak was a Lebanese national residing in France who had acquired French citizenship following a previous marriage to a French national. The review applicant became a resident of France and eventually a French citizen on 3 October 2002.[6] The review applicant and Ms Shalak divorced on 25 April 2005 and he arrived in Australia in 2011 on a visitor visa, married Rima Awad on 27 January 2012 and applied for Australian residence on the basis of his marriage to Ms Awad. He was granted Australian permanent residence on 16 April 2015 and shortly thereafter, on 25 August 2015, he divorced Ms Awad in accordance with Islamic rites.[7]  They were legally divorced by way of Australian court order on 28 March 2017. The Tribunal has before it the divorce certificates relating to the review applicant’s first and second marriages[8]  and a NSW Single Status Certificate issued on 5 April 2017 in relation to the review applicant’s marital status.[9]

    [6] Declaration of French citizenship provided on review.

    [7] Certificate of Divorce issued by Bilal Dannoun, Islamic Consultant, on 25 August 2015: presented on review.  

    [8] Department file, f. 15, 29.

    [9] Provided on review.

15. The parties claim they began communicating with each other on 12 March 2016.[10] The have largely been consistent about when they met in person, that is, at Beirut airport on 26 April 2016 when the review applicant travelled to Lebanon.[11] At the hearing it was claimed that the parties decided to marry before they met in person. At the interview and in written statements submitted in support of the visa application, the parties claim they became engaged on 11 June 2016.[12] However, according to Department movement records and stamps in the review applicant’s passport,[13] the review applicant had departed Lebanon and returned to Australia on 3 June 2016. According to the visa application the parties married in Lebanon on 11 May 2017. Documents submitted in support of the visa application included a marriage certificate certifying that the parties married in Tripoli, Lebanon on that date. The certificate listed the visa applicant’s marital status as divorced. No explanation for this was provided in the visa application. As noted, the parties subsequently claimed that was because they had married and divorced prior to that date because the review applicant was not legally divorced from his second wife when the parties first married. At the hearing the review applicant said they were advised to divorce and remarry for this reason by ‘Maroun from the Punchbowl office’. The Tribunal could not get clarity at the hearing about when the parties claim to have become engaged in person or when their first marriage occurred.

    [10] Department interview: Department file, f.161.

    [11] The review applicant said in a written statement dated 14 September 2017, that they met on 26 May 2016: Department file, f.80.

    [12] Visa applicant’s written statement dated 30 September 2017 and review applicant written statement dated 14 September 2017: Department file, ff. 82,80.

    [13] Copy presented on review.

16. On the basis of the divorce certificates and the parties’ marriage certificate, the Tribunal accepts that the parties were married to each other in Tripoli, Lebanon on 11 May 2017 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

17. The financial aspects of the parties’ relationship is limited. To some extent this can be explained by the fact the visa applicant resides in Lebanon and the review applicant was residing in Australia when the parties became acquainted and then in France. The parties do not have any joint assets or liabilities. They do not claim to owe any legal obligations to each other. There is no pooling of financial resources by the parties. The parties do not have ongoing household expenses as they have not established a permanent household together.

18. As will be outlined in the following section, the parties claim that the review applicant paid for rental accommodation the parties shared when he visited the visa applicant in Lebanon following their marriage and that he paid for their day-to-day expenses when they shared accommodation. However, the evidence about where they lived is inconsistent and no documentary evidence has been provided to show that the review applicant paid for any accommodation or day-to-day expenses. It is claimed that the review applicant has sent the visa applicant money since April 2016 and receipts for money transfers were provided to the Department and Tribunal as evidence of that. The receipts indicate the review applicant sent the visa applicant money on a number of occasions since April 2016 but mostly in 2018 and 2019 after the visa was refused by the delegate. Overall, then, the financial aspects of the parties’ relationship is not strongly indicative of a spouse relationship.

    Nature of the household

19. The parties do not have children together or do they claim joint responsibility for the care and support of any children.

20. The parties claim they resided together after they married when the review applicant returned to visit the visa applicant in Lebanon. Those visits were not frequent contrary to what the visa applicant claimed in the brief written statement she made in support of her visa application.[14] According to the stamps in the review applicant’s passport, after the trip during which he met the visa applicant in April 2016, he visited Lebanon again from 4 May 2017 to 4 July 2017, 4 September 2017 to 17 September 2017, and 24 July 2020 to 8 December 2020. These visits do not amount to substantial periods of time over the course of what is said to be a relationship of more than 6 years and includes a significant period of almost three years between September 2017 and July 2020 when the review applicant did not visit the visa applicant at all even though, as a Lebanese national, he could have readily travelled to Lebanon. Further, he could have stayed and lived with the visa applicant while awaiting the outcome of her visa application. It isn’t entirely clear to the Tribunal from the evidence he gave at the hearing why the review applicant did not choose to live with the visa applicant in Lebanon during the visa application process. The reasons given included that the review applicant’s son was not happy in Lebanon and the electricity and water services in Lebanon are unreliable. These do not seem especially compelling reasons for the parties to spend such long periods of time apart when they are nationals of the same country.

    [14] Department file, f.82.

21. At the hearing the parties stated that from the time they married, they lived alone whenever the review applicant returned to Lebanon in accommodation he rented for them in Minieh and Al Moun. They claimed that the review applicant paid for the rent and costs associated with that accommodation. At the hearing he stated that given the devaluation of the Lebanese currency living and renting in Lebanon was good for expats. In terms of housework, he said it was generally shared equally when they cohabited. According to statutory declarations submitted in support of the visa application from two people who claimed to have known the review applicant for 6 years and the visa applicant for 3 and 5 years, the parties lived ‘under one roof’.[15] They do not however provide details about where the parties lived together.

    [15] Statutory declaration made on 26 September 2017 by Isaaf Clink and Fathai Kouzaiha.

22. At the interview the visa applicant stated that she lived with her parents but when the review applicant visited in July 2017 they rented accommodation and in September 2017 they lived with his sister in his sister’s house. The latter is inconsistent with the oral evidence at the hearing that the parties always lived alone in rented accommodation when the review applicant visited. Further, a letter submitted in support of the visa application dated 30 September 2017 from the Mayor of Minieh, Lebanon also contradicts the evidence at the hearing that the parties lived in rented accommodation. According to the Mayor’s letter the parties lived at an address in Minieh which corresponds to the residential address the visa applicant provided in her visa application and hence shared with her parents.

23. Other than the claim that the parties lived together when the review applicant visited Lebanon after they married, the evidence about the parties living arrangements is contradictory and, on its own, not particularly persuasive.

    Social aspects of the relationship

24. Evidence of the social aspects of the parties’ relationship include four statutory declarations from friends and acquaintances who are also distant family members. Those persons declared that they believed the parties’ relationship was genuine and continuing.[16] Although only one has known either of the parties for more than a few years, all claim to have spoken to and met the visa applicant and socialised with the parties in Lebanon. Photographs have been presented which depict the parties together both alone and with others in what appear to be various social settings. The photographs appear natural and unstaged. Overall, the evidence indicates that the parties represent themselves to others as being married to each other and that they undertook social activities together when the review applicant was in Lebanon. This is credible evidence of a genuine relationship.

    Nature of persons' commitment to each other

    [16] On review statutory declarations were submitted from Sany Awad and Donna Hoblos, both declared on 11 July 2018.

25. The parties claim to have been in a relationship for over 6 years. This is a significant period time. They claim to have lived together during that time for a total period that the Tribunal regards as short given the review applicant could, as a Lebanese citizen, can readily return and stay in Lebanon. Nevertheless, over the course of giving their oral evidence at the hearing the parties demonstrated a familiarity with each other’s family’s and lives which the Tribunal considers to be indicative of a couple who have been in a committed relationship for as long as they claim. The parties claim they keep in touch via phone when physically apart. On review the review applicant submitted copies of messages the parties sent each other between 7 May 2018 and 18 June 2018 as well as screenshots of messages. They are of limited assistance to the Tribunal given they are in Arabic and no translations, not even of a sample, was submitted. At the hearing the parties stated that they want to be able to live together in Australia and hoped to have a child together. After the hearing the review applicant provided evidence to indicate that the visa applicant was pregnant.[17] Overall, these aspects of the relationship indicate to the Tribunal that the parties a mutually committed to a long-term relationship with each other. Based on the oral evidence at hearing, the Tribunal is satisfied that the review applicant returned to France for his son and not, as it had suspected prior to the hearing, due to an ongoing or resumed relationship with his first wife.

    Conclusion 

    [17] Results from El Menieh Medical Laboratories dated 3 November 2021.

26. The Tribunal has had regard to the concerns which led the delegate to refuse to grant the visa. The Tribunal either does not share those concerns or they have been overcome by considering the additional evidence provided on review and the evidence as a whole. Perhaps many of the concerns the delegate had and the Tribunal had prior to the hearing may not have arisen if more accurate, forthright, consistent, detailed and translated evidence had been provided to the Department and on review prior to the hearing. In any event, having regard to the evidence as a whole and the prescribed considerations in r 1.15A(3), the Tribunal is satisfied that at the time of application and time of decision the parties had a mutual commitment to a shared life as a married couple to the exclusion of all others, their relationship was genuine and continuing, and they were not living separately and apart on a permanent basis. The Tribunal is thus satisfied that the requirements of s 5F(2) are met at the time the visa application was made and the time of this decision.

    Findings on criterion

1. Having found the review applicant was an Australian citizen and the visa applicant was his spouse at the time of application and time of decision, the Tribunal finds that the visa applicant meets the requirements of cl 309.211(2) and hence cl 309.211, and cl 309.221. The appropriate course therefore is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

   DECISION

2. 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).