El Jejieh (Migration)

El Jejieh (Migration) [2018] AATA 5940 (26 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Samih Mostafa El Jejieh
CASE NUMBER:  1603105
DIBP REFERENCE(S):  OSF2013/010580
MEMBER:Robert Wilson
DATE:26 June 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Migrant) (Class BC) visa.

Statement made on 26 June 2018 at 2:56pm

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – genuine spousal relationship – validly married – financial, household, social aspects of relationship – nature of commitment – relationship ended – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65, 375A
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 100.221(2)(b)
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 on 3 March 2016 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 23 October 2013 on the basis of his relationship with his sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).
The criteria for the grant of a Subclass 100 visa are set out in Part 100 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.100.221.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100.221(2)(b), and cl.100.221 is not met by the applicant because the delegate found that the applicant and the sponsor do not have a mutual commitment to a shared life as husband and wife to the exclusion of all others as required under s.5F(2)(b) or 5CB(2)(a).
The applicant appeared before the Tribunal on 28 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Preliminary matters – s.375A
At the hearing on 28 November 2017, the Tribunal discussed the s.375A Certificate at folio 201 of the Departmental file, OSF2013/010580, with the applicant, who was not represented.
The Tribunal stated that the Department of Immigration has provided information and it has issued a certificate pursuant to s.375A of the Act, which requires the Tribunal to do all things necessary to ensure that the document or the information are not disclosed to any other person other than to a member of the Administrative Appeals Tribunal. There are a number of documents. The reason stated in the certificate for non-disclosure is:
(a) it contains information regarding immigration processes; and
(b) it contains personal information of the sponsor.
The Tribunal showed the applicant the Department’s certificate, which states there is information in the Department’s file which the Department does not want to have released because of (a) and (b) above.
The applicant said he had no idea about the certificate.
The Tribunal said to the applicant at the Tribunal hearing that he could make any submissions he wanted regarding the validity of the certificate, or write to the Tribunal later, or not respond at all, or he could send in a request. On 28 November 2017 the Tribunal replied to a request for a copy of the recording of the Tribunal hearing, and provided a recording of the hearing.
The Tribunal has not relied on or put weight on any information outlined in (a) or (b) above.
On 26 June 2018 the Tribunal received a notice from the Department revoking the aforementioned s.375A certificate at folio 201. The Department reissued the certificate for reason of the document(s) /information in folios185, 163(a)-167 of file number OSF2013/010580 because it was given to the Minister, or an officer of the Department, in confidence, and section 375A does not apply.
However, stated above the Tribunal has put no weight on information provided in the certificate.
A further s.375A matter
The Tribunal refers to an extra piece of information in another certificate regarding the disclosure of certain information only to the (then) Migration Review Tribunal under s.375A of the Act.
The Tribunal has not put weight on it as it is from an anonymous source.
A statutory declaration received on 28 November 2017 at the Tribunal hearing
The evidence in the statutory declaration sworn by the sponsor appears to relate to bringing the applicant over to Australia when the 309 matter was an issue. The date on which the document was declared appears to be 19 November 2014.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether there is a relationship in this matter.
Whether the parties are in a spouse or de facto relationship
Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.
‘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 parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.
Are the parties validly married?
If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. On the evidence, the parties were married to each other under a marriage that is valid for the purposes of the Act as required by s.5F(2)(a). A stamped translation of the marriage certificate was provided to the Department. The applicant’s and sponsor’s names are on the document. They were married on 15 August 2013 in El Minieh. A copy of the original marriage document was also provided, and it has been stamped as a true copy of the original by the Australian Embassy, Beirut.
Are the other requirements for a spousal relationship met?
Only the applicant was present at the Tribunal hearing in which Reg.1.15A was considered. His evidence follows below. The sponsor did not attend, and there were no witnesses.
Regulation 1.15A(3)(a) - the financial aspects of the relationship
(i) Any joint ownership of real estate or other major assets
There are no joint major assets.
(ii) Any joint liabilities
When asked about this, the applicant answered by saying that the sponsor said she did not want to live with him, and she wanted to end the relationship.
(iii) The extent of any pooling of financial resources, especially in relation to major financial commitments
The Tribunal asked whether the applicant and sponsor pool their money together to buy things. The applicant stated, ‘I more than her.’ He paid the biggest share of everything, such as electricity, water, rent, other bills, food etc., and he paid for things for her car, including petrol.
(iv) Whether one person in the relationship owes any legal obligation in respect of the other
The applicant has superannuation with the building company where he works. When asked by the Tribunal, the applicant stated that he does not have a will nor does he have a life assurance policy.
(v) The basis of any sharing of day to day household expenses
Every week the applicant gave the sponsor $200 for pocket money, and if they went shopping they shared the costs. If he took her to a restaurant, he would pay. Food was shared between him and her and her mother and her brothers. The applicant stated that someone would pay for something.
The Tribunal gives little weight to r.1.15A(3)(a) above as the financial aspects of the relationship are not indicative of a genuine relationship.
Regulation 1.15A(3)(b) – the nature of the household
(i) Any joint responsibility for the care and support of children
The applicant stated that the sponsor cared for her niece and nephew, and she took wages for it. At times she took those children to school and picked them up.
The applicant and sponsor did not have children.
(ii) The living arrangements of the persons
The applicant gave evidence at the Tribunal hearing that he was living in his wife’s parents’ home at Gundaroo St, Villawood, NSW. Other persons living there included the sponsor’s sister and mother and two brothers.
The father had separated, and then married again. He then divorced again and returned to Lebanon to live. He comes to Australia every four months.
The applicant and sponsor slept in one bedroom, and the mother and sister were in another room. There are three bathrooms, a laundry and one kitchen. Later during the hearing, it was stated that the wife and mother have their own bedrooms and there are five bedrooms on the upper floor.
(iii) Any sharing of the responsibility for housework
The applicant does the work outside the house. He cuts the grass in the backyard, and cooks on the barbecue outside. The sponsor washes the clothes and cooks inside, and her mother does the cleaning.
Overall, the Tribunal gives little weight to r.1.15A(3)(b) above as the nature of the household is not clearly indicative of a genuine relationship, with some confusion as to whether the mother was in a single room or shared a room.
Regulation 1.15A(3)(c) – the social aspects of the relationship
(i) Whether the persons represent themselves to other people as being married to each other
The applicant said the sponsor did introduce him as Samih, her husband. The sponsor said that the applicant did the same with her uncle and a family friend. The sponsor also introduced the applicant to her friend and her cousin.
When the applicant introduced people such as old neighbours and friends, to the sponsor, they all knew that they were husband and wife. There is a close community in Lebanon.
(ii) The opinion of the persons’ friends and acquaintances about the nature of the relationship
The Tribunal asked the applicant at the hearing whether he and the sponsor had provided opinions of friends and acquaintances about the nature of the relationship. He said, ‘No, they all know about it.’
The applicant said that the sponsor’s aunts used to tell him to be careful, as it is not a good family.
(iii) Any basis on which the persons plan and undertake joint social activities
The applicant stated at the Tribunal hearing that he would go with his wife together to Lebanon and to Australia.
The applicant said that he likes the beach and they went all the time to the beach, the Opera House and to see the city of Sydney.
Sometimes the sponsor’s mother, Fatima, and/or sister, and Hamza and Zakaria, her brothers, would come too. Sometimes, her father, Mahmoud, would come also.
The Tribunal gives little weight to r.1.15A(3)(c) above as the social aspects of the relationship are not clearly supported in writing, or orally, of a genuine relationship, particularly as there were no opinions of friends and acquaintances, or any photos of the applicant and sponsor together and/or with friends and relatives.
Regulation 1.15A(3)(d) – the nature of the persons’ commitment to each other
(i) The duration of the relationship
The applicant stated at the Tribunal hearing that he and the sponsor met at the sponsor’s grandmother’s house in Lebanon on 9 July 2013. They were living 500 metres away. The applicant met the sponsor and her family. The applicant wrote a letter to the Australian Embassy in which he stated that the applicant and the sponsor started their relationship on 21 July 2013. It ended on December 2015 when he and the sponsor separated.
The applicant and the sponsor went out together starting in August 2013. Sometimes his mother and family and her mother and family would go out together with them, for example, to the mountains and other places in Lebanon.
The applicant and the sponsor married on 15 August 2013 in Lebanon.
They started living together in Lebanon and in Australia after they were married. They came to Australia on 28 February 2015. Problems started in Australia. When the applicant came to Australia everything was perfect at the beginning and after a few weeks to one month the sponsor started acting in an improper way. She said that he could only come to Australia through her and she could ring the Department of Immigration to get him out at any time.
Then, she kept that going. He was patient at the beginning. Her parents did the same thing. Then he discovered that her whole family had problems, for example, her father had divorced her mother and there were problems throughout the whole family.
He thought the family problems might have affected her. Her family told him that she did not want him. Her father had brought women to Australia and divorced them and then done it again with another woman. He thought this may be the family way.
The applicant also stated at the Tribunal hearing that the sponsor can get him out of the country at any time. The applicant said that the sponsor has two brothers who assaulted someone and they are in gaol.
The applicant said that when he moved to the sponsor’s house, they assaulted him and told him to get the hell out of there, and he moved to another place. The sponsor told him she did not want him any longer. The applicant said even though they used to go out together for a walk he does not know why she threatened him like this.
The applicant first came to Australia on 28 February 2015 to Perth. On 1 March 2015 he arrived at Sydney Domestic Airport.
The applicant referred to other issues in the sponsor’s family including her uncles on her mother’s side. He concluded by saying the whole family is a mess. Even her sister has been divorced. There were too many problems in the sponsor’s family. It was complicated. He did not know this until he came to Australia. He thought that perhaps these problems affected the sponsor. He thought that this may be why she threatened him like this.
The applicant stated that he was very kind all the time, and never shouted at her, and treated her with respect.
He left everything, his family, his work, and he loved her and came to Australia and she started doing all this. He was really shocked.
The applicant stated that his brother did try to intervene. He is a principal in a school. He stated that the sponsor’s father is moody and almost created a fight between the two families. The applicant said his father talked to the sponsor’s grandfather and the applicant talked to her uncle who is close to her. Mediation was tried. The applicant said he tried to take her out of that horrible situation. They said it was her choice really. The applicant thought someone was trying to sabotage the relationship. He wanted to take her out of the environment and to have a family. She did not respond to that suggestion. She had a really bad temper. She shouted at the applicant and he tried to calm things down. He could not fathom why she treated him like this. When they were in Lebanon they argued about everything, for example, the number of children they would have. She said that they would wait a few years and then they would have children. When they came to Australia everything changed.
He stated at the hearing that even his application with the Department had the sponsor’s address. He asked her and she said she tossed them in the rubbish and put them there. The applicant said that the sponsor would ring the Department of Immigration and cancel his request for immigration and she made reasons up.
The applicant said that one night she pushed him when he was asleep. She also took a blanket off him when he was asleep. She also woke him in a bad way.
(ii) The length of time during which the parties have lived together
The applicant indicated that they lived together for five to six months overall, in Lebanon and Australia.
(iii) The degree of companionship and emotional support that the persons draw from each other
The Tribunal asked the applicant about the degree of companionship and emotional support that he and the sponsor drew from each other. The applicant answered, ‘Lebanon good, but here, no.’
At the Tribunal hearing the applicant further provided the following evidence.
The Tribunal asked whether the applicant ever found companionship or emotional support in his wife. He stated that he may have in Lebanon, but not in Australia. He said they were together in Lebanon for two and a half months. He was waiting two years to come to Australia. He used the phone and messages.
In February 2015 he came to live with the sponsor in Australia and it lasted until June 2015. They moved houses. He lived in a rental house with his cousin in Guildford. However, he stated they went out together.
The applicant said that after the big problem in June, the sponsor drastically changed. The applicant suggested that they live together but she said ‘No, we can’t do that anymore.’ She started saying that in October and November 2015. At the same time they looked for houses in Fairfield and Granville. He stated that after two years the sponsor should have received the permanent residency papers and they arrived but she did not give them to him. She said she did not want to live with him and said that he should go back to Lebanon in the rubbish in which he used to live.
The applicant said that the sponsor used to tell him foul things through her foul mouth, saying she can remove him anytime from the country (Australia). She always threatened him with him with the immigration threat. He said all his feelings of wanting to have a family with her faded away. He said that he left everything in Lebanon, his family and a student he taught; to come to Australia. But it was a psychological shock which caused many problems. He said all because of her he is going to doctors, psychologists and social workers. He said he had never experienced psychologists and social workers in Lebanon. He said the psychological problems have become more of an issue, and the physical problems due to the stress, etc., that she put him through.
On 7 January 2016 the Department of Immigration and Border Protection wrote to the applicant stating that (at f.178 OSF2013/010580):
Information provided to the Department indicates that the spousal or de facto relationship upon which your application was based has ceased.
The applicant provided the following oral evidence at the Tribunal hearing interspersed through his evidence in relation to r.1.15A(3)(a),(b) and (c).
The applicant said that the sponsor said she did not want to live with him, and she wanted to end the relationship.
Sometimes they were happy in the first month he came to Australia. When they came to Australia, they spent two months and everything was perfect, but after some further months it seemed to change. He could see it by the way she talked. He would ask her to go out to keep her away from the negative energy. She would go. She liked to go out.

In the second month everything changed. For example, she would take off his blanket and also pushed him when he slept; and she pushed the door in his face. He was not physically hurt. Otherwise, she hit or pushed him when he was asleep and he would just wake up. He stated that she could not hurt him physically.
He had stress, anxiety, depression and insomnia including 12 hours without sleep. Then he felt his heart, headaches and too much depression and stress, from her.
The applicant referred to the separation between the applicant and the sponsor. The applicant indicated that there was a big problem between him and the sponsor, in June 2015, and he and the sponsor separated in December 2015. The sponsor said the applicant told her father to get the divorce papers from Lebanon. This happened and he sent them to his daughter. The sponsor said she would not have any relationship with the applicant. The applicant’s brother rang from Lebanon and said to do whatever her family wanted; so they divorced. He thinks this was in September 2015.
(iv) Whether the persons see the relationship as a long-term one
The Tribunal asked if the applicant saw the relationship as a long-term one. He replied, ‘How now?’ He said if she can leave the house she lives in, he wishes to do it, but she has to leave everything behind to build an understanding between them. He said he saw her once after the divorce. He asked her what they had done wrong. He said, ‘They played us.’ She did not agree.
The applicant saw the sponsor and suggested they live together, and leave everything else behind, but she said, ‘No.’
The Tribunal gives little weight to r.1.15A(3)(d) above because of the lack of commitment to each other.
FINDINGS
The Tribunal has considered whether there was a relationship between the applicant and sponsor.
The applicant stated at the Tribunal hearing on 28 November 2017 that the sponsor had said she did not want to live with the applicant, and she wanted to end the relationship.
On 17 December 2015 the Department of Immigration received information that the relationship between the applicant and sponsor had broken down.
The applicant stated at the Tribunal hearing that their relationship ended in December 2015 when he and the sponsor separated.
On 7 January 2016 the Department of Immigration and Border Protection wrote to the applicant stating that information provided to the Department indicates that the spousal relationship upon which his application was based, had ceased.
The applicant suggested they live together and leave everything else behind, but the sponsor said, ‘No.’
The applicant stated that the sponsor’s family told the applicant that the sponsor did not want him.
The applicant gave evidence that they divorced in September 2015.
The Tribunal has considered all the evidence and the mandatory considerations in s.5F of the Act.
The Tribunal finds that the applicant and sponsor do not have a mutual commitment to a shared life as husband and wife to the exclusion of all others (see s.5F(2)(b) of the Act).
The Tribunal finds that the relationship is not genuine and continuing as required by s.5F(2)(c) of the Act.
The Tribunal finds that the applicant and the sponsor do not live together, and they live separately and apart on a permanent basis. As a result, they do not meet s.5F(2)(d)(i) and (ii) of the Act.
The Tribunal is not satisfied that at the time of this decision the parties are in a married relationship.
Further, the Tribunal finds that the applicant and the sponsor have never been in a genuine spousal relationship.
As the applicant does not meet the requirements of s.5F of the Act he will not then meet the requirements of cl.100.221.
The applicant claimed family violence. However, as the Tribunal was not satisfied that the applicant and the sponsor have ever had a genuine spousal relationship, the Tribunal has not considered the issue of family violence.
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant’s Partner (Migrant) (Class BC) visa.
Robert Wilson
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).

[2018] AATA 5940

26 June 2018

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

Statutory Construction

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