EL Omar (Migration)

[2023] AATA 378

EL Omar (Migration) [2023] AATA 378 (9 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Amar EL Omar

VISA APPLICANT:  Mr Yaser S S Abuseleisel

CASE NUMBER:  2206906

DIBP REFERENCE(S):  BCC2021/238580

MEMBER:Meena Sripathy

DATE:9 February 2023

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 09 February 2023 at 12:14pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Federal Circuit and Family Court remittal – married relationship – religious marriage by proxy after religious divorce of sponsor’s previous marriage and application to FCCA for divorce, but before order granted – not solemnised under Marriage Act, but accepted as demonstration of commitment at the time – later sharia court deed valid – limited household, financial aspects of relationship while living in different countries – COVID restrictions and security situation in home country – duration of relationship and nature of commitment – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5CB(2), 5F(2), 65
Migration Regulations 1994 (Cth), rr 1.09A(3), 1.15A(3), Schedule 2, cls 309.211, 309.22 1

CASE
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 23 April 2021 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 15 February 2021 on the basis of his relationship with his sponsor, the review applicant. At that time, Class UF contained only one subclass: Subclass 309 (Partner (Provisional). The criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate found the parties were not validly married and they had not lived together in a de facto relationship for at least 12 months prior to the application and was not satisfied there were compelling reasons to waive that requirement.

4. The review applicant applied for review of the decision to the Administrative Appeals Tribunal and on 26 August 2021 the Tribunal (differently constituted) (the first Tribunal) affirmed the decision under review.  The Tribunal also found that the parties were not validly married.  The Tribunal considered whether the parties were in a de facto relationship, having regard to the matters set out in r.1.09A(3), and was not satisfied that the requirements of s5CB(2)  of the Act were met at time of application and time of decision, or that they had been in a de facto relationship at least 12 months prior to the date of the application or that there were compelling reasons for the grant of the visa. 

5. Judicial review of this decision was sought to the Federal Circuit and Family Court of Australia.

6. On 9 May 2022 the matter was remitted by consent to the Tribunal to be determined according to law. The Court noted that it was conceded by the Minister that the first Tribunal failed to consider a Marriage Deed issued by the Palestinian territory on 15 April 2020 and the associated claim that the parties entered into a marriage contract under Palestinian civil law on 1 March 2021 and that this was materially relevant to the first Tribunal’s consideration of whether the parties were in a married relationship under s5F(2) of the Act.

7. The review applicant appeared before the Tribunal in person on 7 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

8. The issues in the present case is whether the visa applicant meets the requirements for a married relationship within the meaning of that term in s5F(2) the migration legislation, and in particular whether the parties are validly married and meet the requirements of a married relationship.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. According to information provided in the visa application, the visa applicant was born and resides in Gaza, Palestine in 1973.  He has a mother, six brothers and two sisters and three children, born in 1999, 2006 and 2010.  He is sponsored by the review applicant was born in Lebanon in 1965 and is an Australian citizen. She arrived in Australia in 1998 on a partner visa.  The sponsor has three sisters, three brothers and four children, born in 1985, 1987, 1991 and 1996.  The parties claim to have been communicating since August 2018 via WhatsApp after being introduced through the visa applicant’s uncle.  They became engaged after one week and married via distance on 27 October 2018.  They met in person on 1 March 2020 when the sponsor travelled to Gaza. 

11. The visa applicant was previously married from 1996 to 2015 to Areej Jamil Ahmed. There were three children of that relationship born in 1999, 2006 and 2010.  The sponsor has had three previous relationships.  The first was from 1984 to 1996.  There were four children of that relationship born in 1985, 1987, 1991 and 1996.  Her second marriage was from 1997 to 2002 to Ahmad Omar and her third marriage, to Azzam Kassem was from 2007 and ended in a religious divorce on 20 December 2016. Subsequently information was provided of a Divorce Order from the Federal and Family Circuit Court granted on 6 December 2018.

12. The following documents were submitted in support of the relationship:

    ·Relationship history statements by the visa applicant and sponsor, including details about the inception and development of the relationship;

    ·evidence and translations of the visa applicant’s divorce certificate from his previous wife on 25 September 2015; Evidence of Marital Validation dated 15 April 2020 validating the marriage on 27 October 2018 in Australia; and Islamic Marriage Certificate of a marriage between the visa applicant and sponsor in Sydney Australia on 27 October 2018;

    ·statements by a friend of the review applicant who is the wife of the uncle of the visa applicant and another friend of the review applicant and visa applicant;

    ·evidence of the visa applicant sending money to the review applicant on 10 January  2020 in the sum of $1,287 and on 2 September 2020 in the sum of US$3,340 (while the review applicant was in Lebanon); on 30 June 2019 in the sum of $500 and on 18 August 2019 in the sum of $400;

    ·receipts for the purchase of various items including jewellery;

    ·a rental contract for a property in Qatar Street issued on 1 March 2020 naming the visa applicant as lessee ;

    ·evidence of calls made to each other in 2021; and

    ·photos of the parties together in Gaza.

13. On 30 March 2021 the Department wrote to the visa applicant and to advise that they do not consider the marriage contract made on 27 October 2018 in Australia evidences a valid marriage under Australian law because the sponsor’s divorce to her previous husband took effect on 7 January 2019.  The letter also notes that the Marriage Validation Certificate issued in Gaza on 15 April 2020 was considered but it seeks to confirm the validity of a marriage not recognised under Australia law. The Department invited comment. 

14. In response to this invitation, the sponsor provided a letter commenting on the issue of the validity of their marriage under Australian law.  The sponsor explains that she was married to Azzam Kassem on 16 July 2007, she separated from him on 27 September 2016 and she obtained a Certificate of Dissolution of Islamic Marriage on 20 December 2016.  There were no children of the relationship.  At the time she married the visa applicant she was free to marry because she was never legally married in Australia.  She applied for a divorce in Australia on 6 September 2018 which was obtained, and she hopes the Department accepts that her marriage on 27 October 2018 is valid under Australian law. She lived with the visa applicant from 1 March 2020 until she left on 8 August 2020.  They lived in a rented property and she has provided the rental contract. During her stay she was introduced to all of his relatives and they lived as husband and wife throughout that time.  If the relationship is not recognised as a valid marriage she would appreciate it if the application can be considered under de facto grounds.  Attached to this submission, she provided a copy of the Certificate of Dissolution of Islamic Marriage and an Affidavit submitted to the Federal Circuit Court of Australia filed with her divorce application.

15. On 23 April 2021 the delegate refused the application on the basis that the marriage that had taken place by proxy in Australia on 27 October 2018 was not valid under Australian law because consent of both parties is required.  The delegate found that the letter of validation issued by the Deir-al-Balah Sharia Court does not change this finding.  Therefore the delegate found the visa applicant was not the spouse of the sponsor.  In considering the application on the basis of a de facto relationship the delegate found the parties had not been in the relationship at least 12 months prior to the application and therefore do not meet r. 2.03A(3)(b) and no evidence or claims were provided of compelling or compassionate circumstances.

    Evidence before the first Tribunal

16. In a submission lodged with her review application on 25 May 2021 the sponsor submitted that she was very sad about the refusal of the application because she lived with her husband for over 6 months in Gaza and there was a technical problem regarding her marriage certificate.  There are problems in Gaza now and she is unable to communicate with her husband for the last week due to electricity being down.  She is in financial hardship and seeks fee reduction and she is sick from anxiety and depression and wants an early hearing.  Documents relating to her financial and health circumstances were provided, including a letter from her treating neurosurgeon stating that she previously had a craniotomy for the repair of an aneurysm and suffers cervical spondylosis and lumbar central canal stenosis.  She is unable to walk long distances and has chronic left sided arm pain.

17. Prior to the hearing, on 28 and 29 July 2021, the applicant submitted a letter disputing the delegate’s finding that she and the visa applicant had not lived together for 12 months prior to the application, on the basis that they had lived together for 6 months, and the delegate did not consider if there were any compassionate or compelling circumstances.  She further stated that on 24 May 2021 she and her husband obtained their legal registered marriage certificate which was issued on 7 June 2021 and she attaches a copy in both English and Arabic.  She requests the Tribunal to take this into consideration as the marriage is now properly registered in Palestine.  A copy and translation of a Marriage Deed issued on 1 March 2020 by Islamic Sharia Court in Deir Al Balah was attached.   Evidence of WhatsApp communications and financial transfers were also submitted prior to the hearing. 

18. The review applicant attended a hearing by telephone before the first Tribunal on 18 August 2021, during which oral evidence was also taken from the visa applicant.

19. On 26 August 2021 the first Tribunal affirmed the decision to refuse the application. The Tribunal was not satisfied there was a valid marriage and, considering the application under the de facto provisions, was also not satisfied that the relationship between the review and visa applicant was a genuine de facto relationship within the meaning of that term in s5CB.

    Evidence before current Tribunal

20. On 5 July, 13 September and 31 October 2022 the review applicant requested priority of the application on the basis of the remittal of the case from the Federal Court and her poor health preventing her from travelling to see the visa applicant in Gaza.

21. On 26 October 2022 the Tribunal invited the applicant to provide updated and current evidence of the relationship given the period of time since she last provided such evidence to the Tribunal was now over 12 months.

22. On 14 November and 8 December the applicant provided the following information:

    ·Evidence of financial transfers between the review applicant and visa applicant in 2021 and 2022

    ·Screenshots of communications between the parties.

    Tribunal hearing 7 February 2023

23. The Tribunal took oral evidence from the review in person and visa applicant by telephone.  The Tribunal questioned the applicant at some length about her living and family circumstances and that of the visa applicant. It also asked questions about each of their past  relationship histories and the inception and development of this relationship. In relation to the issue of the validity of the marriage the Tribunal discussed their evidence and the documents before the Department and Tribunal relating to the marriage, in the documents issued by the Sharia Court in Gaza.  Relevant details of the discussion and evidence provided is included in the discussion below. 

    Whether the parties are in a spouse or de facto relationship

24. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

25. ‘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: s.5F(2)(a).

    Are the parties validly married?

26. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. For the following reasons the Tribunal accepts 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).

27. In the visa application the visa applicant declared that he and the sponsor married on 27 October 2018, in a marriage ceremony conducted in Sydney, by Taj Al Din Al Hilali. The Tribunal observes that In the relationship statement submitted with the application the visa applicant referred to this as their ‘engagement ceremony’ and that they completed the requirements of marriage when the sponsor came to Gaza.  In their oral evidence about the October 2018 ceremony, the parties told the Tribunal the visa applicant attended by video and the sponsor was in Sydney with the Imam and witnesses.  The Tribunal notes that both the delegate and the first Tribunal concluded that the ‘Islamic marriage’ conducted in October 2018 was not a valid marriage for the purposes of the Act.  Both the delegate and first Tribunal gave the reason that proxy marriage is not recognised under Australian law. The first Tribunal also found that the sponsor was in fact still married to Azzam Kassem as her divorce to him did not become final until 7 January 2019.   

28. The Tribunal does not necessarily agree that proxy marriages can never be recognised for the purposes of Australian migration law.  For example, a proxy marriage that is valid under the law of a foreign country where the marriage was solemnised and where none of the exclusions in s 88D(2) – such as prohibition on polygamy-  apply, may be capable of being recognised in Australia as valid.  However, the Tribunal agrees that in this case, the Islamic  marriage ceremony that occurred on 27 October 2018 was not a valid marriage. The ceremony that took place in Australia  appears to have been conducted only as a religious marriage and was not solemnised under the Marriage Act 1961 (Cth) (which has particular requirements such as filing a notice of intention to marry and signing of a marriage certificate[1]). There is also evidence before the Tribunal that the review applicant’s divorce order from her previous husband Azzam Kassem did not become final until January 2019 and therefore she was still married to him at that time. Under s88D(2)(a) of the Marriage Act that polygamous marriages are not permitted. Therefore, the Tribunal finds the parties were not validly married on 27 October 2018 for the purposes of the Act. 

    [1] Eg. ss 42(8) and 50(2) of the Marriage Act 1961 (Cth)

29. Further explanation was provided by the parties at hearing about why they undertook the religious marriage ceremony in this manner at this time. The review applicant explained that it was necessary for them to have this religious contract in order to be able to continue to their relationship over distance within the bounds of their traditional culture. This permitted her to talk with him over the internet and remove her scarf.  They were at this time still  getting to know each other better and the relationship developed over the next year. This is consistent with the visa applicant’s description of it as an ‘engagement ceremony’ in his relationship statement.  In 2020 the review applicant travelled to Lebanon and from there to Gaza and they met in person on 1 March 2020.  By this time they had confirmed their commitment to marriage.  The parties have consistently stated that on this date they attended the Sharia Court to validate the previous religious contract.  This was necessary for them to begin to live together in Gaza and consummate the marriage. They consider that they were married from this date. On 15 April 2020 a document was issued to them recording that they attended a Sharia session in the presence of a Judge and on 1 March 2020 confirmed their marriage contract previously made and that the marriage had been consummated. This document in essence validated the religious marriage contract made in October 2018 in Australia. The Tribunal is satisfied the parties evidence about the processes undertaken in Gaza relating to their marriage is consistent with independent information before it regarding the role of Shari’a Courts in Gaza.[2]

    [2] See, for example, Norwegian Regulee Council, The Shari’a Courts and Personal Status Laws in the Gaza Strip, January 2011 the-sharia-courts-and-personal-status-laws-in-the-gaza-strip.pdf (nrc.no)

30. The Tribunal accepts that the parties were present in person on 1 March 2020 and before a Shari’a Court consented to the terms of a marriage contract previously undertaken in a religious ceremony in Australia.  It accepts both parties were by this date free to marry, and therefore the Marriage Deed of a contract made on 1 March 2020 is evidence of a valid marriage for the purposes of the Act. 

31. Having reached this conclusion that the parties were validly married, the Tribunal must consider whether they meet the other requirements for a married relationship, namely, 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).

    Are the other requirements for a spouse relationship met?

1. In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

2. The Tribunal has considered all of the evidence now before it, including oral and written evidence previously provided and the oral testimony obtained in person from the review applicant and by telephone from the visa applicant at a hearing before the present Tribunal undertaken over several hours. 

3. The parties live in different countries and have lived in different countries since the commencement of their relationship.  This together with the volatile and precarious security situation in the visa applicant’s home country and the circumstances of the COVID 19 pandemic and associated travel restrictions in the period under consideration have clearly affected the kind and amount of evidence the parties could accumulate since the application was made and the Tribunal takes all of this into consideration. 

4. For reasons explained below, the Tribunal concludes that it is satisfied that the review and visa applicant are in a married relationship within the meaning of that term in s5F of the Act. The evidence is discussed under the headings relevant to matters indicated in r.1.15A(3).  

   Financial aspects of the relationship

5. Before the first Tribunal evidence of four money transfers was provided, and the parties gave evidence that the review applicant sent her money to pay for her to visit him in Gaza and that he financially her during her stay there for almost 6 months.  Before the present Tribunal the review applicant provided evidence of regular financial transfers of approximately $200 per month from the visa applicant.  This was confirmed by the visa applicant. The Tribunal observes that this appears to have commenced following the first Tribunal’s decision and may have been in response to the first Tribunal noting in the decision record that the visa applicant, who was working, had not provided regular or continuing financial support to the review applicant. Nevertheless, it accepts that this is evidence of financial support by the visa applicant to the review applicant.  The review applicant was familiar with the amount of salary he received and was aware that he contributed financially to his children and siblings.  The Tribunal noted among the evidence the review applicant had provided the Tribunal were several transfers by her to Gaza, however she confirmed at hearing that this was not sent to the visa applicant, but rather a charity he suggested to pay for a well in honour of her late sister. However, when the Tribunal asked the visa applicant about this he was not aware of her sending any money to him or to Gaza.  In response to this inconsistency the review applicant submitted that he may have forgotten about it, but it was most definitely his suggestion. 

6. The parties gave consistent evidence that the visa applicant intends to work and financially support the review applicant when he comes to Australia as he considers that to be his role and duty.  The Tribunal accepts their evidence on this intention.

7. Notwithstanding the one discrepancy in their evidence regarding the visa applicant’s lack of knowledge about funds sent by the review applicant to Gaza, the Tribunal is satisfied the applicants’ otherwise demonstrated a reasonable familiarity with each other’s financial circumstances and that the arrangements between them are consistent with a genuine relationship taking into consideration that they live in separate countries, and each have their own source of income and local obligations. 

   Nature of the household

8. The Tribunal accepts that the parties live, and have always lived, in different countries and this limits the evidence that can be provided concerning this matter.  

9. Since their marriage in March 2020, the only period they have lived together was from 1 March 2020 to 8 August 2020, a period prior to the application.  Evidence is before the Tribunal supporting that they shared a house together and lived as a married couple during this time. The review applicant gave evidence about the visa applicant’s movements and work during the time they lived together. She indicated she has many photos of their time together (which she brought with her to the hearing but the Tribunal did not consider it necessary to look at). The Tribunal accepts in the period the review applicant was in Gaza that the parties lived together as a married couple.

10. There are no children of the relationship.  The parties both told the Tribunal that the review applicant met his children, albeit briefly, during her stay.  The visa applicant indicated he has spoken to the review applicant’s adult children.  The review applicant told the Tribunal all her adult children were aware of the relationship (she told one son before the religious marriage and informed the rest of her children before she travelled to Gaza in 2020). All her children are generally supportive.  The visa applicant gave evidence that he has spoken to one of her sons and a daughter.  He expressed the view that they did not behave with her in the way that children should, implying that they do not always visit her when she is unwell and he has sometimes asked his uncle’s wife to visit her. 

11. Since that time the review applicant travelled again overseas from July to September 2022, however she did not make it to Gaza.  At hearing she explained that her intention was to visit the visa applicant but she was unable to because of the volatile security situation in Gaza at that time.  The Tribunal accepts that country information before it supports this. Information from DFAT states on 5 August 2022 increased tensions saw Israeli airstrikes into Gaza and retaliatory rocket fire into southern and central areas of Israel; that the situation was 6unpredictable and there was a high threat of civil unrest in the Palestinian Territories. Current Smart Traveller advice is that the Australian Government is not able to support individuals applying for entry or exit permits for Gaza and the Australian Government may not be able to provide consular assistance in Gaza.[3]  On 2-7 August 2022, the Israeli authorities closed their border with Gaza, citing security concerns, blocking any movement of people or goods; an escalation of hostilities took place on 5-7 August.[4]  The Tribunal is satisfied that the security situation in Gaza was particularly grave in the period she had travelled and accepts the review applicant’s explanation for why she was unable to travel to Gaza to visit the visa applicant.  It also accepts their claim that, due to the circumstances, the visa applicant was unable to leave Gaza for them to meet elsewhere.

    [3] Israel and the Palestinian Territories Travel Advice & Safety | Smartraveller ; see also Six major developments that shaped 2022 for Palestinians | Israel-Palestine conflict News | Al Jazeera,

    [4] Movement in and out of Gaza: update covering August 2022 - occupied Palestinian territory | ReliefWeb

12. The review and visa applicant told the Tribunal they have discussed and agree that they will live together at the review applicant’s home if he comes to Australia. The review applicant indicated that she lives in social housing and she has already mentioned to her housing organisation that she married overseas and would like her husband to live with her when he arrives.  She was told to contact them again when he arrives in Australia.

13. Despite the limited evidence relating to the nature of the household, the Tribunal is satisfied the parties lived together for a period when they were in the same country and intend to live together and share a household when he arrives in Australia. In the circumstances it is satisfied the evidence relating to nature of the household is consistent with the existence of a genuine and continuing married relationship.

    Social aspects of the relationship

14. The Tribunal accepts that the parties represent themselves to other people as married to each other.  Above, the Tribunal has accepted that they confirmed their marriage relationship before the Sharia Court in Deir al Balah on 1 March 2020 and lived together as a married couple for over 5 months.  At the hearing the review applicant showed the Tribunal identification documents issued to her by the Palestinian National Authority which stated her status as married and named the visa applicant as her husband.  The visa applicant told the Tribunal he informed his employer, the university, of his marriage and as a result was eligible for a ‘married allowance’. He gave evidence that his mother and siblings joined them for a celebration at a restaurant while she was there.  The Tribunal notes the review applicant brought a substantial bundle of photographs to the hearing she was willing to show.  The parties gave evidence to demonstrate that they were each known to and integrated with members of the other’s family.  The review applicant stated that she has informed her housing agency and Centrelink of the marriage and been told both bodies to update them when the visa applicant arrives in Australia.

15. The Tribunal is satisfied that the evidence relating to the social aspects of the relationship is consistent with and supports the existence of a genuine married relationship.

    Nature of the commitment to each other

16. The parties met each other over the internet in over four years ago.  They made a  conscious (and serious) decision to progress the relationship by participating in a religious Islamic marriage in October 2018. The Tribunal considers that, while not recognised as a valid marriage for the purposes of Australian law, this ceremony demonstrated the commitment the parties made to each other from that time. The Tribunal accepts on their oral and documentary evidence that they continued, and still continue, to have regular communication over the internet through WhatsApp chat and video calls.

17. The review applicant travelled to Gaza, married and lived with the visa applicant for over 5 months in 2020.  Their ability to visit each other in person since then has been impacted by the circumstances of the global COVID 19 pandemic. In 2022, the review applicant said they tried (again) for the visa applicant to get a visitor visa to visit her in Australia (having been refused when he previously applied in 2019), but his application was refused. The Tribunal reviewed Departmental records about this application and notes the circumstances of civil disruption in his home country together with the pending partner visa application are recorded as reasons for the refusal of his visitor visa.  After his application was refused, the review applicant travelled to Lebanon in July 2022 with an intention to visit him in Gaza but was unable to due to the escalating and volatile security situation there at that time.

18. The Tribunal heard from the review and visa applicant directly at hearing about why they chose to marry and continue their relationship.  The review applicant explained that, having had many bad experiences in the past with previous partners, this is the first time she has felt safe and stable in her life.  The six months they spent together felt like so much longer to her and she had the best time of her life.  She referred to the caring and loving way he talks to her over the video and the care and compassion he shows to her.  The visa applicant in his evidence referred to their compatibility, in terms of age and stage of life, and how he likes her features, such as her elegance and how she hosts family and friends. He referred to feeling love for her. 

19. Having carefully considered the duration of the relationship in the context of the particular circumstances including the precarious and volatile security situation in the visa applicant’s home country, the global pandemic and the review applicant’s health limitations, and the evidence relating to companionship and emotional support they draw from each other, the Tribunal is satisfied the parties have demonstrated a commitment to each other consistent with a married relationship and that they see the relationship as long term. 

20. Having regard to all of the above, the Tribunal is satisfied the review and visa applicant have a mutual commitment to shared life to the exclusion of others and are in a genuine and continuing relationship.  While they are not living together, the Tribunal accepts this is only because of the visa applicant’s does not have a relevant visa to enable him to travel.  The Tribunal is satisfied they are not living not separately and apart on a permanent basis.

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

22. Therefore, the visa applicant meets cl.309.211 and cl.309.221. 

23. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 309 visa.

    decision

24. 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.

    Meena Sripathy
    Member

    
    

    Attachment  -  Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).