El-Halabi (Migration)

El-Halabi (Migration) [2019] AATA 4081 (9 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Mr Said El-Halabi
VISA APPLICANT:  Ms Suzan Bou Dargham
CASE NUMBER:  1823074
DIBP REFERENCE(S):  BCC2018/1190445
MEMBER:David Barker
DATE:9 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.

Statement made on 09 August 2019 at 1:09pm

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – validity of s 376 certificate – existence or identity of a confidential source of information – opportunity to comment on, or respond to adverse information – genuine intention to live together as spouses – inception and development of relationship – lack of emotional intimacy – evidence of familial support of relationship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359A, 359AA
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 300.216, 300.221
CASES
In the Marriage of Pavey (1976) 10 ALR 259

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 13 March 2018. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 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. Relevantly to this matter the primary criteria include cl.300.216.
The delegate refused to grant the visa on 7 August 2018 on the basis that the visa applicant did not satisfy cl.300.216 and cl.300.221 of Schedule 2 to the Regulations because the delegate was not satisfied that the parties intend to marry and live together as spouses.
The review applicant appeared before the Tribunal on 17 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant and a friend of the review applicant, Mr Raid Al Zakout. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The review applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
BACKGROUND
The visa applicant is a national of Lebanon and is currently 45 years old. She was previously married from 1993 to February 2018. There were two children from that relationship, sons, aged 25 and 20 years. Information in the delegate’s decision record, a copy of which was provided with the review application indicate the visa applicant’s parents, younger son and a stepsister are residing in Lebanon. She has one sister and her oldest son residing in Australia.
The review applicant was born in Lebanon and is currently 47 years old. He migrated to Australia in 2003 and acquired Australian citizenship in 2008. The review applicant was previously married from 2003 to October 2015. There are no children from that relationship.
In written statements provided with the visa applications, the parties claim that they first met each other in 2004. At the time the visa applicant, her previous husband and children were visiting relatives living in Australia. They claim to have resumed communication with each other by WhatsApp in January 2018. The review applicant then travelled to Lebanon, arriving on 26 February 2018 and they state their engagement took place on 28 February 2018, before the review applicant returned to Australia on 5 March 2018. The review applicant gave evidence that he again departed Australia in October 2018 for a brief trip to Lebanon.
The decision record, a copy of which was provided with the review application, indicates the delegate who considered the application noted the following issues:
·Very limited evidence regarding the financial aspects of the parties’ relationship was provided with the visa application and that which was provided did not show any indication of an ongoing pattern of transactions between the parties;
·There is no evidence the parties have cohabited, although this may reflect cultural expectations that a couple do not live together prior to marriage;
·The parties have spent a very limited amount of time together since their engagement;
·There is no evidence of family support for the relationship;
·Photographs provided with the visa application mostly show the parties together in the same clothes, raising concern they were taken in a restricted range of contexts. Photos submitted do not demonstrate many activities undertaken in the company of relatives or friends;
·One of the witness support statements provides inconsistent information as to how the parties first met;
·The inception and development of the relationship prior to the decision to marry was very brief and there are no photographs or other evidence that an engagement ceremony was held;
·Whilst a religious court confirmed the visa applicant’s divorce from her previous husband on 1 February 2018, the divorce was not finalised with the civil authorities in Lebanon until 16 April 2018, after the claimed date of the parties’ engagement ceremony;
·The visa applicant's son and sister reside in Australia, which in the view of the delegate, provides a significant incentive for her to migrate to Australia;
·The parties are not related, however, the visa applicant's sister is married to the brother of the review applicant’s ex-wife.
Based on these considerations, the delegate suspected that the relationship had been contrived for the purposes of migration and was not satisfied that the parties genuinely intended to live together as spouses and therefore did not meet the criteria in cl.300.216. The delegate found that the visa applicant did not meet these criteria at the time of the decision and so, did not meet the criteria in cl.300.221. Accordingly, the application was refused.
Prior to the hearing, on 29 May 2019, the Tribunal received a request to prioritise the review due to the visa applicant suffering a [medical condition]. The Tribunal facilitated this request.
On 10 July 2019 the Tribunal received further documents in support of the review application, including:
·A written submission from the migration agent;
·Financial remittance receipts dated: 10 March 2018 - $392.87, undated $420 and $275;
·A NSW Land Registry Services Title Search, dated 10 July 2019;
·WhatsApp communication records, mostly untranslated.
On 18 July 2019 the Tribunal received a translated divorce order in relation to her previous marriage and a copy of the data page of the visa applicant’s passport.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the review applicant and visa applicant have a genuine intention to live together as spouses.
In making its findings, the Tribunal has considered the documents contained in the department and Tribunal files as well as the oral evidence provided at the hearing. It has also taken into account the documents and submissions received from the review applicant’s migration agent after the hearing.
The s.376 certificate
The Department issued a certificate under s.376 of the Act on 16 May 2019 and forwarded this certificate to the Tribunal, along with documents containing information that the certificate states the release of which is contrary to the public interest because it may disclose, or enable a person to ascertain the existence or identity of, a confidential source of information. This certificate was brought to the attention of the review applicant and his representative at the start of the hearing and submissions were sought from them in relation to the validity of the certificate. The review applicant indicated he wished to rely on his representative’s submissions in relation to this issue. The representative submitted that the review applicant had no prior knowledge of the certificate and there is a need to rely on the Court’s guidelines. The representative submitted that, according to case law, the member has the discretion to disclose the information if the certificate is of national interest and that it is for the member to make a finding as to whether there is a national interest or not and if not, to disclose the content of the documents to the review applicant.
The Tribunal is satisfied the s.376 certificate is a valid, as it is in writing, dated and signed by a delegate of the Minister and I accept that the release of the documents specified by the certificate would be contrary to the public interest because it may disclose, or enable a person to ascertain the existence or identity of a confidential source of information. The Tribunal informed the review applicant that it intended to exercise the discretion to not disclose all of the information in the specified documents covered by the s.376 certificate. Notwithstanding this, the Tribunal told the review applicant that it would put the gist of information contained in the documents covered by the Certificate that it considers relevant to the decision under review to him at an appropriate point in the hearing pursuant to the procedural fairness provisions provided for in the Act.
Information put to the applicant pursuant to s.359AA of the Act
The Tribunal put particulars of information contained in documents covered by the s.376 certificate that it considered relevant to the decision under review to the review applicant pursuant to s.359AA of the Act, explaining the reasons why that information was relevant. The Tribunal also advised the review applicant he could seek an adjournment to comment or respond to the particulars of the information. The information put to the review applicant pursuant to s.359AA of the Act was as follows:
- It is alleged the relationship between the review and visa applicants is fake and contrived as a favour to facilitate the visa applicant’s migration to Australia.
- It is alleged that neither the review or visa applicant have informed their respective families about the relationship or the engagement.
- Neither the review or visa applicant has the other party as a friend on their respective Facebook accounts and have never posted or shared anything about the relationship or engagement – confirmed by the Tribunal’s review of the publically available information on the identified Facebook pages.
The Tribunal told the review applicant that this information is relevant as it raises a concern he and the visa applicant have not provided truthful evidence about their relationship and that this gives rise to the concern that neither the review nor visa applicant is a reliable source of information. The Tribunal explained that if it decided this was the case it could not rely on the evidence provided by the review and visa applicants in support of the visa application. The Tribunal explained that if it is not satisfied the parties have a genuine intention to live together as spouses it will affirm the decision to refuse the application for a Prospective Marriage visa.
The review applicant requested a further seven days to consider and prepare a response. The Tribunal consented to this request and on 24 July 2019 received written submissions from the migration agent which stated:
RE: CASE NUMBER: 1823074
We refer to the above matter and the hearing dated 17 July 2019. In the hearing the honourable member adjourned the hearing and allowed 07 days to make further submission
in writing in response to the concerns the honourable member have raised with the sponsor applicant Mr Said El Halabi. The sponsor applicant instructs us to bring the following to the honourable member's attention:
1)Section 376 of the Migration Act 1958 (Cth) (The Act) Certificate:
At the hearing the honourable member raised s.376 of the Act certificate. We note, Tribunal finds it as a valid certificate. During the hearing, the honourable member disclosed partial content of the materials to the sponsor applicant to comment. The honourable member put to the sponsor applicant that the certificate alleges [emphasis added] that the Department of Home Affairs received information on or about early this year that the relationship between the visa applicant and the sponsor applicant is not genuine. Part of the evidence was that
they both are not 'facebook friends' and as a result there is no common interaction which readily available to the public via facebook.
The honourable member further commented that the Tribunal have conducted his own research and it is in line with the complaint. In response to this, the sponsor applicant brings the following to the honourable member's attention.
Both the sponsor applicant and visa applicant never lead any evidence that they are facebook friends or raised any evidence that suggest that they are facebook friends and/or share common interests over facebook which is available to the public.
Secondly, sponsor applicant finds it irrelevant that the delegate of the minister have raised this facebook issue in the decision record at page 4 and 5 stating:
"The applicant and sponsor have provided statutory declarations from the sponsor's friends. One of them stated that the sponsor have met the applicant through Facebook. However, this contradicts the information that they met at the shop of the applicant's sister. They do not give any convincing reasons as to why she believes the relationship is genuine and continuing; therefore, I give it little weight. Considering all the evidence, I am not satisfied that the relationship has the level of social acceptance and recognition, reasonable for a couple who are genuinely to marry and live together as spouses”.
The sponsor applicant advised the Tribunal that source of the above mentioned information is not known to the applicant as both the Form 888 provided from the sponsor applicants friends does not include this information nor the superficial friend 'Khadije Yaghi'.
We therefor submit, the delegates finding in relation to the social aspects of the relationship dated 07 August 2018 is erroneous, illogical, irrelevant and therefore cannot be relied upon
by the Tribunal.
We submit that the facebook issue raised by the honourable Tribunal with the sponsor applicant during the hearing was "information" for the purpose of s.424A of the Act, for which particulars were required to be given in writing to the Applicant by force of s.424A(1)(a). We further submit that failure by the Tribunal to comply with s.424A is a breach which may give rise to jurisdictional error on the part of the Tribunal with the result that the decision of the Tribunal may become invalid: SAAP v Minister for Immigration (2005) 228 CLR 294.
We submit that the Tribunal choose to disclose the 'information' under s.376 of the Act and
therefore must comply s.424AA and s.424A of the Act if the Tribunal is going to make findings
based on the 'information'.
2)The Social Aspects of the relationship:
It is the sponsor applicant's understanding that the Tribunal finds the evidence provided in support of the social aspects of the relationship is not adequate. In response to this, the sponsor applicant requests the Tribunal to consider the evidence lead during the hearing and
the following:
a)Facebook is a social platform which may or may not include two individuals personal commitment towards a relationship. These two persons have chosen not to share each other’s private life on facebook and that is the understanding they have between them. In pursuit of finding whether a relationship is genuine or not; the factors available on 'Facebook' is not an essential indication. It is the user's discretion to publish the content as per their wish.
One may argue, it is now the common practice to share affection and love over the social media specially for engaged couples. In response, the applicant submits that it is not essential to have a facebook endorsement to maintain a relationship. The visa applicant was mourning in response to her brother's death, maintained contact with each other using WhatsApp, sent money in a limited scale to buy her gifts, attend hearing with a medical condition to lead evidence and ofcourse have paid all expenses in relation to this application. This certainly establishes the genuine intention of the applicants.
b)Further to this, the applicant submits, part social aspects of the relationship includes, in this instance, whether both these applicants genuinely intends to get married and whether the marriage will be in a public ceremony. During the hearing the sponsor applicant gave evidence in relation to his plans of marriage and an estimate number of guests to be present at the wedding. These evidence suggests the wedding will be in a social gathering announcing their relationship to the society with endorsement from society as a couple.
c)The sponsor applicant submits that he is in a genuine relationship and someone from the community may have out of jealousy made a complaint about it. The Tribunal may take further note of the following:
i.The Department of Home Affairs will have further opportunities to asses this relationship in near future when the visa applicant will apply for subclass 820/801 visas. And;
ii.The sponsor applicant have no issues and owns a property on his own; which has an estimated market value of $750,000.00 and both have expressed their willingness to share their life in exclusion of others as a married couple.
The Tribunal has considered the response to information put to the review applicant pursuant to s.359AA of the Act.
The Tribunal has noted with some concern that the allegation the parties’ relationship and engagement is not known to the respective families of the visa and review applicant is not responded or commented on in the s.359AA response. The visa and review applicants have had the opportunity to provide evidence of familial support of their relationship and engagement and the Tribunal is not persuaded there is a credible explanation for the lack of such evidence. The lack of probative evidence of familial support for and knowledge of the parties’ engagement and future intention to live together as spouses, in the view of the Tribunal, gives weight to this particular information put to the review applicant for his comment or response.
In relation to the implications that neither the visa or review applicant have ‘friended’ each other’s Facebook pages, or made any references to each other or their relationship on the publically available portions of their respective Facebook accounts the s.359AA response concedes this point.
In the view of the Tribunal, the s.359AA response conflates the particulars of information pertaining to Facebook that was put to the review applicant pursuant to s.359AA and a reference on page four of the delegate’s decision record, which discusses a claim in a witness declaration that the visa and review applicants met through Facebook. This latter ‘Facebook’ reference is not related to issue particularised in the s.359AA issue and the concern arising from that issue as to whether the lack of references to each other and the relationship in the review and visa applicant’s respective Facebook profile public pages is an indicator of either the social aspects of their relationship, or the commitment they have to their relationship.

As to the claim the Tribunal should disregard findings in relation to the social aspects of the parties’ relationship, because it is unreliable through being erroneous, illogical and irrelevant, as it purports, at least in part to be derived from a Form 888 witness support statutory declaration from Khadije Yaghi. With respect to this issue, the Tribunal notes it is undertaking a de novo merits review of the visa application and as such is required to form its own view as to the extent to which the social, or other, aspects of the parties’ relationship support the contention they have a genuine intention to live together as spouses.
The Tribunal notes the Form 888 witness support statutory declarations provided with the visa application were from: Sue Kocoski, who in March 2018 declared the parties previously met 10 years before, when they were both married and since they have divorced they met again through Facebook and other social media; and from Raid Al Zakout, who in March 2018 declares he believes the parties met 10 years (ago) when the visa applicant came to Australia and within the past six months both the review and visa applicant reconnected through social media. As is commented upon in the s.359AA response and in submissions previously provided by the representative, the Departmental file does not contain a witness declaration from a person by the name of Khadije Yaghi. There is however reference to Facebook in one of the witness support declarations, but relevantly, in relation to how the parties reconnected some 10 years after they initially met, not in the context of their initial connecting with each other.
As to the submission that failure by the Tribunal to comply with s.424A of the Act, in relation to the particulars of information regarding the ‘Facebook issue’ which was put to the review applicant pursuant to s.359AA of the Act, ‘is a breach which may give rise to jurisdictional error on the part of the Tribunal with the result that the decision of the Tribunal may become invalid’, the Tribunal does not accept this claim. The contention that information disclosed ‘under s.376 of the Act must comply s.424AA and s.424A of the Act if the Tribunal is going to make findings’ is not in the Tribunal’s view strictly correct. This is because s.424A and s.424AA of the Act pertain to Part 7 – protection matters. The relevant statutory obligation to give applicants, in writing, or orally during a hearing, ‘particulars’ of certain information which is adverse, in the sense that it would be the reason or a part of the reason for affirming the decision under review and to invite them to comment on, or respond to it, which are relevant to Part 5 – general migration matters, such as those associated with an application for a Subclass 300 Prospective Marriage visa, are s.359A and s.359AA.
However, putting this aside in an endeavour to respond to what appears to be the gist of this aspect of the s.359AA response, the Tribunal does not accept the contention that through particularising information from documents covered by the s.376 certificate, which includes the allegation the review and visa applicant’s lack of reference to each other, or ‘friending’ of each other on their respective Facebook pages, is a failure to comply with the statutory obligations in the Act to disclose and invite comment and response in relation to adverse information that would be the reason or a part of the reason for affirming the decision under review. The Tribunal does not accept that choosing to not exercise the discretion to disclose information specified in the s.376 certificate invalidates the legal basis of the Tribunal’s decision, as the statutory obligations in relation to providing the review applicant with the opportunity to comment on, or respond to adverse information were met under s.359AA[1].
MIBP v Singh [2016] FCAFC 183[1]
In relation to the particulars of information regarding the Tribunal undertaking its own research of the Facebook profiles identified as those belonging to the review and visa applicant, the Tribunal considers such research of information on the public pages of these social media sites to be in the public domain and therefore entirely appropriate for the Tribunal to review. As the identified Facebook pages had multiple photographs showing, in the instance of the review applicant, of the review applicant and in the instance of the pseudonym put forward of the visa applicant, of the visa applicant, the Tribunal is satisfied that these were Facebook profiles used by the review and visa applicant. The Tribunal notes that the evidence of the review applicant’s use of Facebook is also relevant in light of the review applicant’s oral evidence during the hearing that neither he nor the visa applicant use Facebook. It follows that the Tribunal is required to put weight on probative evidence that is available to it and to, if the weight would appear adverse to the parties’ claims, put this information under the relevant section of the Act, which in this instance was either s.359A or s.359AA. The Tribunal therefore does not accept that putting particulars of information to the review applicant pursuant to s.359AA of the Act gives rise to jurisdictional error.
As to other issues which are raised in the s.359AA response, the Tribunal acknowledges that it is up to individuals as to the extent they share aspects of their personal lives on social media platforms such as Facebook or WhatsApp. The nature of information on publically available sections of a social media accounts is not essential indicators of either the social or commitment aspects of a couple’s relationship. The Tribunal considers the relevance of the lack of indicators of each other, or of the relationship on respective Facebook pages is whether, when considered with other available evidence, there is an overall lack of evidence to support a contention there is social recognition of the parties’ relationship and of a claimed intention to live together as spouses at some point in the future.
The s.359AA response contends the review applicant is in a genuine relationship and that someone from the community may have out of jealousy made a complaint about it. The Tribunal acknowledges this could be the case, but is not persuaded why a criterion such as cl.300.216 should be disregarded because the Department has further opportunities to assess the parties’ relationship at the time Subclass 820/801 visas are applied for. The Tribunal notes the claim the review applicant owns property in Australia, has sent money to the visa applicant on a limited scale, communicated with her during the period she was mourning her brother’s death and at other times, and will consider the weight given to these claims in the course of the current review.
Do the parties genuinely intend to live together?
Clause 300.216 requires that at the time of application ‘the parties genuinely intend to live together as spouses’. ‘Spouse’ is defined in s.5F of the Act and provides that a person is the spouse of another where those two people are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is recognised as 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 considering an application for a Prospective Marriage (Temporary) (Class TO) visa, the Tribunal may have regard to the considerations set out for spousal relationships: r.1.15A(4) of the Regulations. While it is not appropriate to consider whether the parties are spouses at the time of application or time of decision, an investigation of the parties’ intentions with regard to the definition of spouse in legislation may assist in determining the parties’ aspirations.
Having regard to the considerations for a spousal relationship, and the degree to which these factors may be applied to determine a future intention, the Tribunal makes the following findings.
Development of relationship
Whilst the development of a couple’s relationship is not a factor specified in r.1.15A(3) , the Tribunal is satisfied it is a relevant aspect to consider when determining the parties’ aspirations. The parties claim they first met in 2004 at a time they were both married to their previous spouses and at a time the visa applicant, her previous spouse and children were visiting her sister in Australia. The written ‘statement of relationship’ documents from both the visa and review applicant, which were provided to the Department, are consistent with regard to this and other details regarding the development of their relationship. The Tribunal notes that the kinship connection between the visa and review applicant was not identified by either of them in these relationship statements, in that the visa applicant’s sister was at that time connected to the kinship network of the review applicant, as she was married to the review applicant’s brother-in-law.
The parties claim their relationship developed through contact over WhatsApp. They claim they discussed the possibility of committing to a relationship with each other and that this led to the review applicant travelling to Lebanon on 26 February 2018, followed by a swift marriage proposal and engagement on 28 February 2018. Both of the aforementioned relationship statements are consistent with each other with respect to these details.
The Tribunal also considers it unusual and of some concern that the review applicant had difficulty recalling when he re-initiated contact with the visa applicant, taking some time to indicate it was in 2015 and more likely than not close to Christmas in 2015. This is of concern because the review applicant has previously claimed he did not initiate contact with her until two years had passed after he divorced his previous spouse in 2015.
During the hearing the review applicant gave consistent evidence as to how he reinitiated with the visa applicant in 2015 following the death of the visa applicant’s brother, in the context of the review applicant learning of this unfortunate event and contacting the visa applicant and her family to offer his condolences. They both emphasised the influence the mourning period subsequently had on both the intra-familial and public face of their courtship and engagement. Including why there were not large celebrations associated with their engagement. The Tribunal considers it unusual that an event, which had such a significant role in both the parties reconnecting over a decade after a brief initial meeting in Australia and upon the context of the early phase of their relationship, is not referred to in relationship statements provided by the parties to the Department with the visa application. The Tribunal is concerned that the context of the bereavement and mourning period is now being put forward to explain a lack of evidence about certain aspects of the relationship.
The delegate expressed concern regarding the rapid development of the parties’ relationship and that marriage was proposed after limited actual contact with each other. The Tribunal shares this concern and has further concern as to the review applicant’s inconsistent evidence about when he renewed contact with the visa applicant after their initial brief contact with each other in 2004. Whilst the parties have not given an entirely implausible explanation as to why, as two middle aged people whose previous marriages failed, they decided to form a relationship with each other, the Tribunal does not consider the actual evidence as to the inception and development of the parties’ relationship provides much support to the contention they genuinely intend to live together as spouses.
Financial aspects
The representative has submitted that both the visa and review applicant are financially stable with good earnings and that they are not reliant upon each other for day to day living expenses. The representative submitted that the limited funds remitted to the visa applicant in Lebanon by the review applicant were to purchase gifts for the visa applicant. The review applicant’s oral evidence was consistent with regard to this issue, explaining that he has given the visa applicant gold jewellery. The Tribunal has considered the evidence of financial remittances, provided to the Tribunal on 19 July 2019 in light of this claim. The parties do not have any joint assets, liabilities or bank accounts. There is no evidence to demonstrate that they have pooled their financial resources or shared day to day household expenses to any significant degree. The Tribunal accepts the review applicant owns property in his own name in Australia. The Tribunal has considered the review applicant’s claim the visa applicant may possibly run a business from his residential property at some future time. The Tribunal has not given weight to this evidence, as he provided no credible evidence to support this claim. In light of the nature of the available evidence and findings made on the basis of this evidence, the Tribunal has not given any weight to the parties’ current financial circumstances. In drawing this conclusion, the Tribunal is not drawing an adverse inference on the financial aspects, as they currently reside in different countries, have had limited actual shared contact with each other and are mature aged people who are financially independent on their respective lives.
Nature of the household
The Tribunal accepts that both the visa and review applicant are members of the Druze community and that cultural prohibitions would limit their capacity to cohabit during the very limited periods during two trips made by the review applicant to Lebanon during 2018. The Tribunal acknowledges the evidence of the review applicant’s ownership of a residential property in Australia and of the parties claims that this is where they will reside together if the visa is granted. There is no evidence or claim that the parties have or will have joint responsibility for care of children, as the visa applicant’s children are no adults and living independently of her, the visa applicant has no children and there is no claim the parties intend to have children.
On the basis of oral evidence, which is consistent with Department movement records, the Tribunal accepts that the review applicant has travelled to Lebanon on two occasions in 2018 and has spent time in the company of the visa applicant during these trips. In so far as these circumstances provide a reflection on the parties’ future intention to share a household after they are married, the Tribunal acknowledges the cultural constraints upon the parties cohabiting during the periods the review applicant has been in Lebanon since their relationship began. The Tribunal is satisfied the review applicant has proposed a viable arrangement upon which he and the visa applicant could share a household in Australia after marriage and has placed some weight on this factor.
Social aspects
Photographs provided with the visa and review applications do not show the parties in the company of family or friends during any social outings or social occasions. There are a few photographs with other people taken in a domestic setting, without any explanation as to who is in the photograph along with the visa and review applicant. The delegate concluded that the photos were mainly taken on the day the review applicant came to Lebanon, as the visa applicant and the review applicant are photographed wearing the same clothes and the Tribunal considers that on the face of it, this is a reasonable conclusion to have made.
There are no photographs of any aspect of the parties’ engagement, which the review applicant explains through the parties not wanting to have a large celebration or unduly publicise or record it due to the visa applicant’s family being in mourning for her deceased brother, who had passed away some four months earlier. The Tribunal is not persuaded by this claim, as they have taken a number of photographs of themselves together in other settings during the brief period the review applicant was in Lebanon in early 2018 and the Tribunal can see no reason as to why they would have not taken photographs of an event as significant as their engagement and the small celebration they claim took place at a restaurant with a few friends and the brother of the review applicant. The Tribunal notes the review applicant’s oral evidence that the visa applicant wanted to keep their engagement private, due to both the aforementioned mourning period and because of her previous failed marriage. The Tribunal is however unconvinced as to why any such wish for discretion or privacy would have precluded the parties in some appropriate way documenting an event of such significance as an engagement. The Tribunal also noted with some concern the review applicant’s difficulty recalling the specific date of the engagement celebration and his inability to name the restaurant at which the claimed small event took place. The Tribunal considers these issues cumulatively give rise to concern as to whether an engagement celebration of any type actually took place.
The delegate noted the apparent lack of closeness or physical contact between the parties in the photographs provided in support of their claims. With regard to this issue, in his oral evidence during the hearing the review applicant emphasised the need for discretion and decorum when in public that would be expected by members of the parties’ Druze community in Lebanon. He said the parties were conscious of this factor when they were together during his trips to Lebanon. The Tribunal acknowledges this claim but notes that it is a further instance where the review applicant has needed to explain a factor in the evidence which may otherwise result in an adverse inference being placed on the parties’ claims. In the view of the Tribunal it is also a further example of what in some cases, but not the particular circumstances of this case, may be evidence that supports the degree of companionship and emotional support present in a couple’s relationship. In the particular circumstances of this case and of the photographs provided in support of the application, it is perhaps the omission of apparent emotional intimacy and ease in each other’s company that is a factor that does not support the contention the visa and review applicant genuinely intend to live together as spouses.
There are photographs in the evidence of WhatsApp interactions between the parties, but these are on the whole selfies of the visa or review applicant alone. The Tribunal acknowledges the review applicant has returned to Lebanon in late 2018 for a relatively brief trip and notes that no photographic records of the parties undertaking social activities together with other people have been provided following this second trip. In relation to the photographic evidence that has been made available to either the Department or the Tribunal, in so far as it I relevant to assessing the parties’ future intention to live together as spouses, the Tribunal is not persuaded it demonstrates the parties’ intend to socialise as a couple together, or in the company with other people in the future.
The Tribunal considers a significant issue in the current case is the lack of evidence of familial support for the parties’ relationship. The review applicant claims his brother attended the engagement celebration and that his mother and some members of the visa applicant’s family are aware of and supportive of the parties’ relationship and intention to marry. When asked why there were no witness support declarations or other evidence of familial knowledge of and support for the relationship, the review applicant said that this was because of ‘cultural reasons’ and that whilst the visa applicant’s son, who is currently residing in Australia, is aware of the relationship, he did not want to be involved but was happy as long as his mother is happy. The Tribunal is not persuaded by this explanation or as to what ‘cultural reasons’ would account for relatives not attesting to the parties’ intention to live together as spouses. With respect to any factors arising from the mourning period referred to elsewhere in this decision, the Tribunal is not convinced this would continue to be as significant a factor nearly two years after the reported bereavement period began. The Tribunal considers the lack of credible evidence supporting the claim the parties’ relationship is known of and supported by relatives of the visa and review applicant to not support the contention they genuinely intend to live together as spouses. Further to this, the Tribunal considers the lack of such evidence gives some credence to the information provided to the Department, in confidence, that the visa and review applicant are in a contrived relationship for the purpose of facilitating her migration to Australia and that this would be why they have not told family members about the relationship.

In relation to the Form 888 witness support declarations which were provided with the visa application, the Tribunal finds these do not include any declaration from a person called Khadije Yaghi and has made no findings on the basis of any such document. The Tribunal also finds there is no contradiction between the information in the declaration from Ms Sue Kocoski and that provided by the visa or review applicant in statements they made in the course of the visa application. This is because whilst Ms Kocoski does refer to the parties communicating through Facebook, this was not in the context of how they initially met, as found by the delegate, but was rather in relation to when they re-established communication with each other over a decade after their initial brief meeting in Australia. Accordingly the Tribunal has given some positive weight to the witness declaration of Ms Kocoski and that of Mr Raid Al Zakout, who during the hearing gave oral evidence that was consistent with what he had previously given in the Form 888 witness support declaration.
When considered as a whole, the positive weight given to the witness support from Ms Kocoski and Mr Zakout does not outweigh the concerns arising from the lack of evidence regarding familial support for the relationship or indicators the parties present to the community at large having a genuine intention to live together as spouses.
Nature of the commitment
The review applicant claims the parties have not taken the step to marry in Lebanon because of the chaotic and slow nature of bureaucratic processes in that country. The Tribunal does not consider this a persuasive contention, given the length of time that has now elapsed since their engagement. The Tribunal does not however see it as a determinative issue to the assessment of whether the visa and review applicant have a genuine intention to live together as spouses.
The representative submits that the visa and review applicants are living apart from each other due to their work commitments but they are keeping contact with each other using WhatsApp and have provided numerous records of messages and WhatsApp calls in support of this claim. The Tribunal acknowledges the extensive evidence of this type which has been provided to both the Department and the Tribunal. However, the Tribunal considers such evidence can easily be manufactured for the purpose of supporting a visa application, rather than in the course of genuine communication between a couple and much of the evidence provided by the parties consists of untranslated text messages or call records with no inkling as to the content of calls, the Tribunal has not placed any more than limited weight upon this evidence.
The Tribunal acknowledges the review applicant has a [medical] condition and that the visa applicant displayed an awareness of this and that this is an indicator of communication between them that would usually be present between a couple in a genuine relationship.
In relation to the commitment aspects of the parties relationship, the Tribunal has placed limited weight on this aspect as an indicator the parties have a genuine intention to life together as spouses.
Assessment of intention to live as spouses
The Tribunal is aware of the principles established by the Family Court of Australia in The Marriage of Pavey (1976) 10 ALR whereby ‘what comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage’. The Tribunal considers the principles established in the Marriage of Pavey are broadly consistent with the matters outlined in the Act as appropriate considerations to be undertaken when making a determination about the genuineness of a relationship, or the related issue of whether there is a genuine intention to live together as spouses. The Tribunal agrees with the principle a wide range of factors need to be considered in any given case, taking into account the degree to which these factors may be applied to determine a future intention.
The Tribunal has concern regarding the rapid development of the parties’ relationship and their decision to commit to marriage after limited contact with each other, which has not been resolved by their evidence during the hearing. The Tribunal has placed no weight on the financial aspects of the parties’ relationship and only limited weight on the household, social and commitment aspects of their relationship. The cumulative concerns the Tribunal has identified and the lack of clear evidence to the contrary has resulted in the Tribunal being unconvinced the parties intend to live in a spousal relationship with each other. In the view of the Tribunal there is insufficient evidence to support the parties’ claims with respect to their relationship and their future intentions.
Conclusions
The Tribunal was not satisfied on the basis of the evidence before it that at the time of application, or at the time of decision, the review applicant and the visa applicant genuinely intended to live as spouses. The visa applicant therefore does not meet cl.300.216 and cl.300.221.
For the reasons above, the Tribunal finds the visa applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa.
David Barker
Member

[2019] AATA 4081

9 August 2019

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Immigration

Administrative Law

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Judicial Review

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