Elkurdi (Migration)

[2022] AATA 2240

Elkurdi (Migration) [2022] AATA 2240 (27 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Hanan Elkurdi

VISA APPLICANT:  Mr Achraf Tarhini

CASE NUMBER:  1819542

DIBP REFERENCE(S):  OSF2017/007786

MEMBER:Helena Claringbold

DATE:27 June 2022

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(2) of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 27 June 2022 at 08:12 am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – validly married in home country – limited household and social aspects of relationship while living in different countries – substantial money transfers from applicant to sponsor – nature of commitment – previous sponsorship withdrawn and visa refused and affirmed – pressure by ex-husband and disapproval then acceptance by one child – mental health – spontaneous, detailed and consistent evidence – statutory declarations from family members and friends – decision under review remitted

LEGISLATION

Migration Act 1959 (Cth), ss 5F(2), 359AA, 362A, 375A, 376

Migration Regulations 1994 (Cth), Schedule 2, cl 309.211(2), 309.221

CASE

He v MIBP [2017] FCAFC 206

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 5 June 2017, Mr Achraf Tarhini, the visa applicant (the applicant), applied for a Partner (Provisional) (Class UF) visa. The application was based on his spousal relationship with Mrs Hanan Elkurdi, the sponsor and the review applicant.

2. On 27 June 2018, a delegate of the Minister for Home Affairs refused to grant the visa. The delegate was not satisfied that the applicant and the sponsor are genuine spousal partners. Therefore, the applicant did not meet cl. 309.211(2) and cl. 309.221 of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).

3. On 5 July 2018, the sponsor provided the Tribunal with a copy of the delegate’s Decision Record. This is a review of the delegate’s decision brought by the sponsor.

4. On 6 July 2018, the Tribunal wrote to the sponsor and advised of the following:

   If she wished to provide material or written arguments or material, she believed supports her application, including an explanation why she disagreed with the Department’s decision, she should do so as soon as possible. She should provide an English translation by an accredited translator of any documents written in other languages with both documents sent to the Tribunal.

5. On 9 March 2022, the Tribunal called the applicant’s representative and offered a Tribunal hearing for 23 March 2022.  It advised that the notice of hearing is outside of the prescribed period of notice. The representative agreed to the shortened notice and confirmed this in writing on 10 March 2022.

6. On 9 March 2022, the Tribunal wrote to the sponsor and invited her to a hearing set down for 23 March 2022.  She was advised of the following:

   To provide all documents she intended to rely on to support your case by 16 March

   2022. The decision made by the department should set out the reasons for the

   decision, and you should have regard to these, and any changes in your

   circumstances, in providing documents and preparing for the hearing. Any documents or written arguments sent to us should be in English and if not then accompanied by a translation from a qualified translator.

   Statements written in Australia by the applicant and the sponsor and third party

   statements are to be provided as statutory declarations. The statutory declarations

   must be correctly witnessed and accompanied with identification documents for the authors, for example a certified copy of the person passport or birth certificate.

   Statutory declarations and third-party statements written by persons who do not write

   and understand the English language, are to be written in the persons’ own language.

   Documents not written in English must be translated into English by a translator with a current ‘Translator’ level certification and accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI) who is independent and not involved in or associated with the case under review. This includes any documents or information that the applicants consider relevant to their review that are on the Department of immigration and Border Protection’s case file and/or the Department of Home Affair’s case file and the Tribunal’s case file.

   The foreign language certified statements and the English translated certified

   statements are to be provided to the Tribunal. The statements must be correctly

   witnessed and accompanied with identification documents for the authors, for example a certified copy of the person passport or birth certificate.

   Translations provided by non-certified translators outside of Australia should be

   endorsed by the translator with their full name, address, telephone number and details of their qualifications and experience in the language being translated.

   Should telephone, chat and/or message records be provided to the Tribunal, clearly

   identify information that relates to the financial aspect of the parties’ relationship and

   the nature of their household and the social aspects of their relationship and the nature of their commitment to each other and explain why the information is relevant to these aspects of the parties’ relationship. In addition, where there is information relating to these aspects of the relationship, the explanation of its relevance to be placed directly underneath the information. Independent information identifying the holders of the accounts to be provided. The messages are to be clearly identified by the independent messaging platform with the original message provided. If the messages are in a language other than English they need to be translated into English by a translator with a current ‘Translator’ level certification and accreditation from the National Accreditation Authority for Translators and Interpreters (NAATI) who is independent and not involved in or associated with the case under review.

7. On 14 March 2022, the representative wrote to the Tribunal and stated that given the short timeframe for notification of the Tribunal hearing and their requests for information under s.362A of the Act she may not be able to provide documents and evidence within the required seven-day timeframe. Once she has the information, she would provide her submission after the Tribunal hearing.

8. On 17 March 2022, the representative telephoned the Tribunal. She stated that she wanted to submit evidence to the Tribunal after the hearing to address any specific issues raised during the hearing.  She was advised to discuss any post-hearing submissions with the Presiding Member during the hearing.

9. On 23 March 2022, the sponsor appeared before the Tribunal (the first Tribunal hearing) to give evidence and present arguments. The Tribunal was assisted by the services of an interpreter in the Arabic and English languages. The sponsor confirmed that she understood the interpreter clearly. The sponsor provided her evidence to the Tribunal partly in English and partly in Arabic. The sponsor was represented in relation to the review.  At the hearing the sponsor provided oral evidence relating to the financial aspects of the parties’ relationship. The Tribunal told the sponsor that there was no independent evidence to substantiate her claims. She stated that she had evidence which she had provided to her representative. The representative stated that she was advised by the Tribunal that she could provide this evidence and her submission after the Tribunal hearing. She was surprised by this advice as normally information is required to be with the Tribunal seven days prior to a hearing. The Tribunal told the sponsor and the representative that the representative had been appointed on 11 January 2018 and the application for review had been lodged on 3 July 2018. Therefore, the sponsor had almost four years to provide information to the Tribunal. The Tribunal told the sponsor and the representative that it was concerned that evidence had not been provided to the Tribunal.  The Tribunal advised that in order to provide the sponsor a fair and just hearing, it would adjourn the hearing with another hearing to be rescheduled.  It advised the sponsor and the representative to ensure that all the information in support of the review be provided to the Tribunal as soon as possible and no later than seven days prior to the rescheduled hearing.

10. On 22 June 2022, the sponsor appeared before the Tribunal (the Tribunal hearing) to give evidence and present arguments. The Tribunal also received oral evidence from the applicant. The Tribunal was assisted by the services of an interpreter in the Arabic and English languages. The sponsor and the applicant confirmed that they understood the interpreter clearly. They provided their evidence to the Tribunal in both the Arabic and English languages. The sponsor was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The Tribunal has taken into consideration, individually and completely, the evidence in the Department of Home Affairs’ (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing before coming to its decision.

    ISSUE

13. The issue in the present case is whether, at the time the visa application was made and at the time of this decision, the parties are in a genuine spousal relationship within the meaning of s.5F of the Act.

    BACKGROUND ON THE EVIDENCE

14. The applicant was born in 1983 in Ebba Nabatieh, Lebanon. The applicant’s parents and three siblings reside in Lebanon.  He has a sibling living in Saudi Arabia and another living in Africa. The applicant declared no previous partner relationship. He declared that he lodged an application for a tourist visa which was refused in November 2011. In  2013, the sponsor withdrew sponsorship for a prospective marriage visa. In 2016, an application for a prospective marriage visa was refused. On 14 February 2017, the refusal was upheld by the Tribunal differently constituted.

15. The sponsor was born in 1971 in  Zahle Tripoli, Lebanon. The sponsor’s parents are deceased. She has five seven siblings residing in Lebanon and one sibling residing in Australia. The sponsor declared a previous marriage to Mr Kazim Cebbar from 25 August 1998 to 18 November 2011 when it ended in divorce. There are three children from this relationship who were born in 1994, 1997 and 2005. On 25 August 1998, the sponsor acquired Australian citizenship by grant.

16. The parties met on social media in 2010. On 15 February 2012, the parties met in person in Australia. On  20 March 2012, the parties became engaged. On 12 April 2017, the parties married in South Lebanon. On 18 April 2017, their marriage was registered and this was put into  final effect on 24 April 2017.

    Whether the parties are in a spouse or de facto relationship

17. 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.

    Is the applicant the de facto partner of an eligible person?

18. The Tribunal is satisfied that the sponsor, at the time of visa application and decision, was an Australian citizen who had turned 18. 

    Are the parties validly married?

19. At the time the visa application was made the applicant provided evidence of his marriage to the sponsor. 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).

    Are the parties in a spousal relationship?

20. ‘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).

21. 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.

    Are the other requirements for a spousal relationship met?

22. On 9 March 2022, the Tribunal wrote to the sponsor and advised her of the following: In assessing his matter the Tribunal must consider either r. 1.09A (de facto relationship) or r. 1.15A (spouse relationship) of the Regulations. Regulation 1.09A and r. 1.15A provide that the Tribunal considers all the circumstances of the parties’ relationship including the financial aspects of the relationship; the nature of the household; the social aspects of the relationship and the nature of the parties’ commitment to each other. The applicant was provided with a guide to the type of information that may be provided and told that it was not a definitive list.

    The financial aspects of the parties’ relationship

23. At the first Tribunal hearing, the sponsor stated the following: from 2012 to 2020 the applicant has been sending her money via Western Union which she used to refurbish her home in preparation of the parties living together. At the end of 2012, he sent $500 monthly.  After a year he sent $800 monthly and this increased to $1,000 monthly until 2020. Due to the COVID-19 pandemic the exchange rate fell and it was not worth transferring money.  However, when she went to Lebanon in 2017, 2019 and 2020 the applicant gave her money in cash. She has information from Western Union to support these claims. As discussed above the Tribunal adjourned the first hearing in order that this information be provided for consideration.

24. In a submission dated 5 May 2022, the representative provided the following: copies of Western Union money transfers sent from the applicant to the sponsor. The transfers begin on 12 February 2022 and end on 11 December 2019 with two additional money transfers in February and March 2022. Over that time the applicant has transferred approximately A$43,000 and approximately US$28,000. The parties told the Tribunal that at one time, the money was used to pay the bond and up front rent payments for a rental property. At that time the sponsor was having difficulty because of her financial circumstances finding an agent who would lease to her. They stated that the money was also used to support other rental payments and the purchase of a car and furniture and to support the sponsor and her children. 

25. The sponsor told the Tribunal that she is the recipient of a Jobseeker benefit of $720 and a family assistance benefit of $520 with both payments made fortnightly for the last 10 years. Her daughter Laila is the sponsor’s carer and is the recipient of a carer payment of $1,200 made fortnightly for the last seven years. In addition, her son Allah who works fulltime helps with bills and groceries. 

26. A Centrelink statement for job seeker payment for the time period 22 December 2021 to 15 March 2022 is addressed to the sponsor. This recorded the sponsors job seeker fortnightly payment from 13 April 2022 to be $691 plus an energy supplement of $9.50 plus pharmaceutical allowance of $6.20. It declared that on 15 September 2021 she was granted $819.06 as a tax savings to account ending 7321 with the last balance of $13 with her share being 100 percent. Her other assets, being household and personal effects were valued at $5000 with her share being 100 percent.

27. The parties gave evidence that they do not have any joint ownership of real estate or other major assets or any joint liabilities. They do not pool their financial resources especially in relation to major financial assets and do not owe any legal obligation in respect of each other.  The Tribunal is aware that the parties live in different countries and have not pooled their financial resources or shared day-to-day household expenses. However, the applicant has sent the sponsor a substantial amount of money throughout the parties relationship which assisted her day-to-day household expenses.

    The nature of the parties’ household

28. The applicant lives in a home in Lebanon which he shares with his parents. The home has two levels. He lives on the lower level with his parents and his brother and his family live on the upper level. The applicant has his own internet provider business.  When COVID-19 caused internet prices to soar he began another business as a grocery distributor. He currently runs both businesses from a rental property in his village. The sponsor lives in Australia with her two adult children aged 27 and 25 and her son who is 11 years old.  When the sponsor travelled to Lebanon she  stayed with the applicant in a rented apartment in 2017 and in the applicant’s parents’ home in 2019 and 2020. During these times there may have been some sharing of the responsibility of housework. The parties told the Tribunal that the applicant, who was previously a geography teacher, tutored the sponsor’s children through video link and has looked out for their welfare. At the time of visa application two of the sponsor’s children were aged 22 and 20 and one child was aged 11. The Tribunal finds that at the time of visa application, the parties did not have any joint responsibility for the care and support of children.  It finds that the applicant provided some care and support to the sponsor’s 11-year-old child primarily through a long-distance relationship.

    The social aspects of the parties’ relationship

29. At the first Tribunal hearing, the sponsor stated the following: the applicant travelled to Australia in 2012 and the parties met in person. In 2017, 2019 and 2020 she travelled to Lebanon to be with the applicant. She has photographs of the parties wedding and of the other times she was in Lebanon. As discussed above the Tribunal adjourned this hearing in order that this information be provided for consideration.

30. In a submission dated 5 May 2022, the representative provided the following: documents headed ‘Viber calls between Achraf Tarhini and Hanan Elkurdi’ dated 2017 and 2018.  These record incoming and outgoing calls and missed and cancelled calls.  These are identified at the top of each page by ‘Aaaaahinnnooo’. Ad Hoc pages are identified by ‘Aaaaahinnnooo’ and ‘Lolo’ or ‘Aaaaahinnnooo’ with an image of the applicant underneath.  Another ‘Aaaaahinnnooo’ has an image noted as Fern Street, dated 1 July 2017. Another has an image noted as Cockatiel Circuit dated 1 September 2018. Other pages contain images of properties or unidentified people.  Some of the written content is in a language other than English and cannot be read by the Tribunal. Other records are identified by ‘*Hinno Infinite Love’. The content of these pages are lists of entries for voice calls with a month and a time alongside them. One has a blurred image of a female and an image of the applicant. Another entry dated 9 February 2020 contain an image of the parties. The Tribunal places limited weight on these records as the identification of the account holder/s have not been provided and the content of the messages does not identify the account holders.

1. Statutory declarations dated May 2017, provide the following information: Ms Laila Elkurdi of Bringelly is the sponsor’s sister. She had known the applicant since 2010 but met him in person in 2012 when he arrived in Australia and stayed in her home. She stayed in contact with him and his mother by telephone. In April 2017, the sponsor travelled to Lebanon and the parties married.  Ms Hanan Karaki of Bringelly is the sponsor’s niece. She had known the applicant for seven years but met him in 2012. They are in contact by telephone and messaging. She believes the parties have a strong relationship and want to have their future together.  Both witnesses believe the parties relationship to be genuine. The witnesses addresses and contact numbers have been provided with identification documents of the witnesses.

2. Statutory declarations dated 2022, provide the following information: Ms Sawsan El-Ghoul is the sponsor’s niece. The sponsor married Mr Cebbar and had three children with him. They have problems and finally separated and she moved on with her life. The sponsor began communicating with the applicant on MSN in about 2009. When the applicant came to Australia in 2011 2012 she met him in person and realised how genuine the parties feelings were for each other and how they respected each other. The parties became engaged in Australia and when the applicant departed the sponsor was devastated. The parties applied for a prospective marriage visa soon after the applicant returned to Lebanon. However, the sponsor’s ex-husband, trying to stop the relationship pressured her daughter to leave the sponsor’s home. The sponsor was concerned that she might lose her daughter and her family so she cancelled the prospective marriage visa. The sponsor told her that she continued to communicate with the applicant and told him about the issues she was facing that he supported her decision. A year later the sponsor and her daughter resolved matters. The sponsor continued to love the applicant wanted to be with him so lodged an application for a prospective marriage visa. The sponsor could not travel to Lebanon because she couldn’t afford to do so and couldn’t leave her children. When the application was refused the sponsor felt that she was being treated unfairly and was distressed. The sponsor then travelled to Lebanon and the parties married with most of the family in Lebanon attending the wedding. The sponsor was able to spend time with the applicant before returning to Australia and the parties continue to speak on the phone and the sponsor has returned to be with the applicant a couple more times. She has witnessed the parties relationship developed over the years and the care and respect they have for each other building a relationship of trust and support. Ms Shams Shakarchy of Cecil Hills met the sponsor through her daughter Laila. She became close to the sponsor over the past years and through that relationship met the applicant by telephone. When the sponsor and Laila travelled to Lebanon in 2017 she was aware that the sponsor was going to meet her fiancé at the time and that they were to become married. She still has photographs of the parties wedding and declared that the sponsor travelled to Lebanon to be with the applicant in 2018 and 2020. Although she has not met the applicant she has witnessed the sponsors speaking to him via telephone or video call. She witnessed them communicate and share details of their lives and witness the happiness and confidence that they draw from each other. They communicate well with each other and trust each and support each other. She has witnessed the sponsor going through some difficulties and her stating that she needs the applicant to be here in Australia living with her. Ms Yusra Hadi of Bossley Park has become friends with the sponsor through daughter Laila. She has spent time with the sponsor and Laila and through that friendship became aware of the parties’ marriage. She knows that they met online about 12 years ago and became engaged when the applicant came to Australia for a visit. The sponsor was not able to travel prior to 2017 because of several reasons including financial difficulties and problems with her ex-husband and children and  concern for their welfare. She knows that the parties married in Lebanon in 2017 and spend time together on the phone daily which she has witnessed when she visits the sponsor. She knows that the applicant is involved in the sponsors life and in the lives of her children and that the parties rely on each other still the sponsor is living for the day when the applicant can join her in the same house and they can live a normal life in Australia. All witnesses believe the parties’ relationship to be genuine.

3. Photographic evidence depicts the parties together and with other people at different locations and include photographs of the parties’ wedding and at what appears to be gatherings with other people; the parties together with the sponsor’s daughter and with the sponsor’s son; the parties in front of The Platinum Hotel and the parties in front of what appears to be the Sydney Opera House and Sydney Harbour Bridge.

4. The parties represent themselves to other people as being married to each other and are recognised as a married couple by other people. The parties plan and undertake joint social activities together.

   The nature of the parties’ commitment to each other

5. In a submission dated 5 May 2022 the representative provided the following:

6. A letter dated 20 December 2012 from the sponsor to the Department is titled ‘To whom it may concern’ and ‘this email is to remain confidential’. This provided the following information: regarding visa application OSF2012/010888 for a prospective marriage visa for the applicant. She withdrew from the application and wanted to stop the applicant from coming to Australia. This was because of the mental and verbal abuse, threats and pressure (from the applicant) to process the visa application. She declared that the applicant had been giving her family a lot of nightmares and put her family under duress to process the visa application for him to come to Australia. She declared the applicant kept threatening that when he comes to Australia he is going to ‘harm her and her children and lock them up. They will be living under his rules and her children are living in constant fear. She requested the refusal of the visa application because she did not want the applicant to come to Australia. She feels he will harm her and other people in the community because of his mental instability. She does not recommend that he comes to Australia by obtaining a visa grant and the Department is responsible if they grant the applicant a visa  allowing him to come to Australia and harm her and her family. She declared that she was living in constant fear until she received a response from the Department that his application has been refused and that he will not enter Australia. She provided the applicant’s full details including the application number, date of birth and passport number.

7. A letter dated 17 April 2014 from the sponsor was addressed to the Australian Embassy in Beirut. The sponsor declared that she called the embassy in December 2012 requesting refusal of the visa application and sent a letter to the embassy by mail and the visa was refused in January 2013. She loved the applicant but due to circumstances that existed a year ago she could not proceed as she was concerned about her children. During the applicant’s visit from 16 February 2012 to 15 May 2012 the parties announced their engagement. Her ex-husband approached their children and persuaded her daughter to leave the sponsor’s home because of her proposed marriage to the applicant and the sponsor withdrew from the visa application. She promised the applicant that she would resolve issues with her daughter. In time her daughter accepted the parties’ relationship and she contacted the applicant and informed him of this. She is in contact with him for several hours during the day via Viber or Skype or telephone. She is sure that their love is mutual and they will continue to live together as husband and wife. She requested grant of a visa to the applicant to allow the parties to marry in Australia.

8. A letter from the sponsor addressed to the Australian Embassy in Beirut was received by them on 14 November, the exact year is difficult to read but could be 2014. The sponsor provided information including the following: she had known the applicant since 2010 through the internet and social media. In 2011 their relationship developed and they began talking to each other every day for a long time via Messenger and Viber. In January 2012 the applicant was granted a three month visa for Australia. On 15 February 2012, she met him at the airport with her children and her sister’s family. The applicant stayed in her sister’s home and she started coming to the home every day to see and talk with the applicant. They would go to the market and restaurants or to her home for lunch or dinner with her children. They loved each other before the applicant came to Australia but him being in Australia improved their relationship. On 20 March 2012, they agreed to become husband and wife. On 15 May 2012, the applicant returned to Lebanon and the sponsor was sad. In August 2012 he applied for a prospective marriage visa. However, she had problems with her ex-husband, relating to their children, which became out of control. She did not tell the applicant about these circumstances and she advised the Australian Embassy in Beirut. In January 2013 the visa application was refused. After the refusal she told the applicant about her circumstances, which he understood and she agreed to resolve matters. The parties remained in contact with each other and wanted to live together as husband and wife.

9. An undated statement to the Department from the sponsor was received where she provided the same information as in her statement of 14 November and in addition stated the following: she met the applicant in 2010 on Facebook and the relationship grew over time. On 20 March 2012, the parties became engaged at her sister home in front of close family and some family friends. During the applicant’s visit they went out each day with the children shopping and to dinner.  In 2012, the applicant applied for a prospective marriage visa. A few months later due to family problems, when she wasn't aware of the decisions she was making, she withdrew from the prospective marriage visa application. She realised that she loved the applicant and can’t live without him and regretted her decision. She was honest with the applicant about the reasons for withdrawing from the application and he understood. The parties talk daily and planned to lodge a new application but were aware of the false allegation the sponsor had made. On 16 October 2014 they applied or a prospective marriage visa.  On 12 May 2016, it was refused as the parties had not seen each other. On 15 February 2017, her application for review before the Tribunal, differently constituted, was unsuccessful. On 3 April 2017, she arrived in Lebanon with two of her children. On 12 April 2017, the parties had their Katb Kitab, religious ceremony. On 15 April 2017, they had their wedding with 80 guests attending at the applicant’s parent’s home. The applicant rented an apartment for the sponsor and her children, where they stayed from their arrival.  They had their honeymoon at a hotel in Tyre, Lebanon. She stayed in Lebanon for five weeks  spending the best days of her life with the applicant. She had to return to Australia because of her son’s schooling and because his school holidays had finished. She married the applicant because they genuinely love each other and she wants to be with the applicant living under one roof together as a family.

10. In a submission dated 5 May 2022 the representative provided the following: A letter from the applicant addressed to the Australian Embassy Beirut where he stated the following: the parties talked for the first time on MSN Messenger in 2010 and then began communicating via Viber and Skype. In 2011 they began to talk about love and decided to meet personally and agreed that he would visit Australia. On 9 January 2012 he was granted a visa and arrived in Australia on 15 February 2012. He was met at the airport by the sponsor and her three children and her sister’s family. They then went to her sister’s home where he would stay. The sponsor visited her sister’s home daily and they began to go to the markets and restaurants and to the post office. The sponsor had things to do daily because her children were in school and she needed to buy things for their lunch or dinner. The parties celebrated the sponsor’s birthday on 23 February 2012. On 20 March 2012 in her sister’s home, they announced their engagement. On 13 May 2012 he returned to Lebanon. The parties remain in contact and have planned for the future. On 7 August 2012 he applied for a prospective marriage visa. However, the sponsor had problems which he already explained in the application for the visa. She was trying not to lose the applicant and not to lose her daughter and was concerned that her daughter would leave the home if the parties married. She withdrew from the visa application and in January 2013 the visa was refused. He understood her situation and told her to do what was best for her. She promised to resolve the matter. After approximately a year the sponsor’s circumstances changed. The parties decided to lodge a visa application and to live together as husband and wife.

11. An undated statement addressed to the Department from the applicant provided the same information as in his letter to the Australian Embassy Beirut and in addition stated the following:  At the end of 2011, an application for a visa was refused.  On 20 March 2012 at a dinner at the sponsor’s sister’s house the parties announced their engagement. They did a lot of beautiful things together and it was so nice to be with the woman he loves.  They went shopping and to restaurants with the sponsor’s children and visited a lot of places together. He met all of the sponsor’s children and they love each other. On 13 May 2012, he applied for a prospective marriage visa. In August 2012, the sponsor experienced problems with her ex-husband who began to incite the kids (against) the sponsor.  The sponsor told him everything. She didn’t want to lose him and didn’t want to lose her children. He understood the problems and they agreed to solve the problems together. On 16 October 2014, he applied for a prospective marriage visa. In May 2016, the application was refused. On 15 February 2017, an appeal before the Tribunal, differently constituted, affirmed the decision. After that the parties decided to marry in Lebanon. The sponsor went to Lebanon with two of her children and the parties had their Katb Kitab and then had a wedding at his parents’ home with about 80 people attending. They stayed together for five weeks and went to many places in Lebanon with the children. The sponsor had not been to Lebanon since she was 14 years old. She was happy to see her mother and sisters. They met each other’s big families. They stayed together for five weeks and went to many places in Lebanon. The parties love each other and want to continue their lives together as husband and wife.

12. On 19 March 2018, the representative advised the Department of the following: the sponsor  has been diagnosed with depression and anxiety. The psychologist reported that her condition will deteriorate if she is away from the applicant for a further extended period of time. The sponsor is unable to leave Australia and live with the applicant, in Lebanon, during the process of this application. She is responsible for the care of her children. If she takes the children with her, this will jeopardise their school and work commitments and obligations in Australia.

13. A letter dated 29 February 2018 from Ms Zaarour, psychologist, provides information including the following: the sponsor has been known to the psychologist since 2012 when she was diagnosed with fluctuating depression and anxiety. In addition to psychotherapy the sponsor  is also taking mood stabilising medication. In recent months, she reported a significant increase in her levels of anxiety and depression. It appears that uncertainty relating to the applicant’s visa has triggered the recent increase in her symptoms. She has known the applicant since 2012. During 2012 the applicant came to Australia and they reportedly fell in love straight away and very soon after meeting they were engaged to be married. Unfortunately, the sponsor  was experiencing a number of family and health issues which consequently affected her relationship. She reported feeling extremely overwhelmed and thought that ending her relationship and withdrawing her husband's sponsorship would reduce the tension in her family. However, the parties remained in contact. The sponsor regretted her actions and last year reunited with the applicant in Lebanon. She was unable to travel to Lebanon earlier because of her financial situation. The sponsor fears that the applicant’s visa application will be refused and that they will be separated again. Symptoms of anxiety and depression reported by the sponsor include low mood, excessive worry, restlessness, restless sleep, muscle tension, and lapses in concentration and memory. The psychologist asks that the review be processed urgently to prevent any deterioration of her current level of distress. It is viewed that reuniting the parties will alleviate the sponsor’s  current symptoms of depression and anxiety and allow her to move forward in her life with the applicant by her side.

14. At the first Tribunal hearing, the sponsor stated the following: the parties met via Facebook.  In 2011 their relationship became serious and the applicant asked her to marry him. At the time of the proposal, she was in Australia and he was in Lebanon. On 15 February 2012, the applicant travelled to Australia and the parties met in person. At that time her children were young. The applicant remained in Australia for three months and the parties were together and expressed their love for each other and became engaged. The applicant returned to Lebanon and applied for a prospective marriage visa. She was having extramarital problems with her ex-husband and withdrew the prospective visa application. The parties then reapplied for a prospective marriage visa but this was refused. Further visa applications made by the applicant were also refused. In 2017, she went to Lebanon and the parties married.  She travelled to Lebanon in 2019 and 2020 to be with the applicant.

15. The sponsor told the Tribunal the following: she regrets that the letter dated 20 December 2012 was sent to the Australian Embassy Beirut. The applicant came to Australia in 2012 and the parties became engaged.  She was psychologically vulnerable regarding her relationship with the applicant because her ex-husband caused difficulties between her and the children. She was torn between losing her children or loosing the applicant. She  sought assistance from a friend who wrote the letter and sent it to the Australian Embassy Beirut on the sponsor’s behalf. The content of the letter is not true and the applicant has never been anything but supportive of her and the children. After the refusal of the applicant’s visa application, she told him about the letter and promised that she would resolve matters. The parties continued their relationship. They continued to apply for visas that would allow them to be together but they were refused. The parties communicate regularly and discuss their life issues and support and comfort each other. She could not travel to Lebanon prior to 2017 because of family circumstances and financial restrictions.  In 2017 she travelled to Lebanon with two of her children and the parties married. She returned to Lebanon in 2019 and 2020 and will travel there again on 30 June 2022 with two of her children. She would have travelled to Lebanon in 2021 but the COVID-19 restrictions prevented her travelling.  She would remain in Lebanon for longer periods of time but she has responsibilities toward her son’s education. When the applicant comes to Australia, he will work and between them they would like to purchase a home. They will also take a vacation to Queensland and enjoy being together.  The applicant primarily gave the same information to the Tribunal.  In addition, he stated the following: he would never harm anyone.  He is a family person and as the eldest in his family with his father working away from the family, he is aware of the importance of family. He has loved the sponsor for a long time and they are committed to each other. The refusal of the visas has seen them separated from each other and challenged psychologically but they have remained together and strong in their relationship.

1. The parties have known each other since 2010 and met personally in 2012, when they became engaged. On 12 April 2017, the parties married religiously in Lebanon and lived together until the sponsor returned to Australia on 8 May 2017.  On 17 January 2019, the   sponsor travelled to Lebanon and the parties lived together until the sponsor’s return to Australia on 11 February 2019.  On 24 January 2020, she travelled to Lebanon and the parties lived together until the sponsor’s return to Australia on 27 February 2020. It appears to the Tribunal that the parties support each other including during difficult times of separation and offer each other companionship and emotional support and see their relationship as long-term.

   Other considerations

2. The Tribunal discussed with the applicant a non-disclosure certificate dated 19 July 2018 issued under s.375A of the Act relating to information on the Department’s file and the certificate being revoked on 17 March 2022. It discussed a non-disclosure certificate issued on 17 March 2022 pursuant to s.376 of the Act. The Tribunal put the core of the information to the sponsor under s.359AA of the Act. The information the subject of the certificate primarily relates to the information in the letter dated 20 December 2012 sent from the sponsor to the Department. The Tribunal’s discussion with the sponsor the information the subject of the certificates and put the core of the information to the sponsor and this is recorded on the audio recording of the Tribunal hearing. The Tribunal is perplexed about this letter being sent to the Department and the contents of the letter are concerning. However, having taken all of the evidence into consideration the Tribunal finds that the information is not fatal to the review.

3. Overall, the parties gave consistent information about the aspects of their relationship including the financial aspects and social aspects of their relationship and the nature of their household and their commitment to each other. They each gave consistent and spontaneous detailed information about their family members and about the difficulties they have experienced in their relationship resulting from the visa refusals and their extended separation.

4. The Tribunal is satisfied that the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others; that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis.  The applicant therefore meets the requirements of s.5F of the Act.  Given these findings, the Tribunal is satisfied that the parties are in a spousal relationship.

5. 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.

6. Therefore, the visa applicant meets cl.309.211(2) and cl.309.221 of Schedule 2 to the Regulations.

7. 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

8. 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(2) of Schedule 2 to the Regulations; and

   ·cl.309.221 of Schedule 2 to the Regulations.

   Helena Claringbold
   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).