Elomari (Migration)

[2024] AATA 2344

Elomari (Migration) [2024] AATA 2344 (28 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Waffa Elomari

VISA APPLICANT:  Mr Abdel Karim Haydar

REPRESENTATIVE:  Mr Manoj Kumar Nanda (MARN: 1568823)

CASE NUMBER:  2313224

DIBP REFERENCE(S):  BCC2022/1464686

MEMBER:Jennifer Cripps Watts

DATE:28 June 2024

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 309.213 of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

·cl 309.222 of Schedule 2 to the Regulations

Statement made on 28 June 2024 at 2:05pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – sponsorship limitation – shared finances – review applicant’s family commitments in Australia – social recognition of the relationship – lengthy cohabitation in Lebanon – compelling circumstances for waiver – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 309.211, 309.213, 309.221, 309.222, 309.322; rr 1.03, 1.15, 1.20

CASES

Babicci v MIMIA [2004] FCA 1645
Babicci v MIMIA [2005] FCAFC 77
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 Home Affairs on 22 June 2023 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 28 April 2022 on the basis of his relationship with the proposed 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 309.222 of Schedule 2 to the Regulations because the proposed sponsor, the review applicant, has exceeded the partner sponsorship limitation of two in a lifetime, as it is set in reg 1.20J of the Regulations, and the Minister was not compelled to waive the requirement.

4. The review applicant appeared before the Tribunal by MS-Teams video on 18 June 2024 to give evidence and present arguments, with her representative.  The Tribunal and review applicant were assisted by an interpreter.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The substantive issue on which the visa was refused was that the visa applicant did not satisfy cl 309.322 of Schedule 2 to the Regulations because the proposed sponsor did not have the sponsorship granted. On review, for the purpose of making a favourable decision, firstly the Tribunal can grant the sponsorship if the proposed sponsor meets the requirements for sponsorship of her husband; and second, the Tribunal must be satisfied that the visa applicant and review applicant (the parties), who are married to each other, are spouses as described in s 5F of the Act.

7. The Tribunal has carefully considered, individually and collectively, information material to the issues on review in the Department and Tribunal files and oral evidence given by the review application at the hearing.

   Whether the parties are in a spouse or de facto relationship

8. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

9. ‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d). In forming an opinion about these matters, regard must be had to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the visa applicant’s and review applicant’s household and their commitment to each other as set out in reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) is effectively a question which must be answered: He v MIBP[2017] FCAFC 206.

   Are the parties validly married?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties were married in Lebanon in 2016. The Tribunal is satisfied that 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 other requirements for a spouse relationship met?

11. The subclass 309 partner visa application was lodged electronically in 2022.  The parties provided a substantial amount of documentary evidence to the Department in support of the application.

    Financial aspects of the relationship:  reg 1.15A(3)(a)

12. The Tribunal has considered any joint ownership of assets, or joint liabilities; the extent of the parties’ pooling of financial resources; any legal obligations they have to one another; and any sharing of day-to-day household expenses.

13. The visa applicant is a heavy vehicle mechanic.  He and the review applicant have discussed and agreed that he will pursue opportunities in this field if the visa is granted and he comes to Australia.

14. The Tribunal is satisfied that at the time of application and time of decision the parties, in circumstances where they continue to reside primarily in different countries because of the nature of the visa class requiring an offshore application, that the parties share their finances in a manner consistent with what might be expected of a mature married couple with previous relationships, during periods when they are living together.

    Nature of the household:  reg 1.15A(3)(b)

15. The Tribunal has considered any joint responsibility the parties share in caring for and supporting children; and the parties’ living arrangements.

16. The Tribunal is satisfied, at the time of application and the time of this decision, that the parties, when the review applicant has resided with her husband in Lebanon, share in caring for and supporting the visa applicant’s four children from his previous marriage who live in Lebanon.

17. The review applicant had, for some years, been estranged from her adult children and was able to live in Lebanon for an extended period of time with the applicant due to her not having any significant responsibilities to family in Australia.  However, the review applicant’s mother lives with her and is now elderly and needs the review applicant present to assist her with her day-to-day aspects of living.  In addition, the review applicant’s daughter, needs her mother on a daily basis due to certain conditions she has and is being treated for, which will be long term and appear to be permanent.

18. The Tribunal is satisfied that the parties have spoken about the nature of the review applicant’s household in Australia and the responsibilities she has and that they intend to share these responsibilities if the visa is granted and the applicant comes to Australia to live with his wife.

    Social aspects of the relationship:  reg 1.15A(3)(c)

19. The Tribunal has had regard to whether the parties represent themselves to others as being married to each other; the opinions of friends and family about the nature of the relationship; and any basis on which the parties plan and undertake joint social activities.

20. The Tribunal is satisfied that at the time of application, the parties represented themselves to family and friends, particularly in Lebanon where they resided together as husband and wife for five years, from 2016 to 2021, as a married couple and that the opinions of their family and friends indicate their opinions were that the parties were a genuinely married couple, and that they continue to be at the time of this decision.

    Nature of the persons’ commitment to each other:  reg 1.15(3)(d)

21. The Tribunal has had regard to the duration of the parties’ relationship; the length or amount of time they have lived together; the degree of companionship and emotional support they draw from each other; and whether they see the relationship as long term.

22. The Tribunal is satisfied that the parties have now been married for eight years.  They have spent more time residing together than apart.  They were married in 2016 and the review applicant resided in Lebanon with the visa applicant, her husband, for five years, up to 2021.  She then returned to Australia.  Between 2021 and 2023 the review applicant has made several more trips back to Lebanon to be with her husband.  This year she has not, because her responsibilities for her elderly mother, and for the review applicant’s daughter, Nouf, have had to take priority as neither can cope on their own.  This means that the review applicant cannot leave them to travel again to Lebanon.

23. While the parties demonstrate a degree of companionship and emotional support for one another, it is probably fair to say that the visa applicant provides the greater weight of support because the review applicant has had, and continues to have, some very significant issues of her own and these additional family responsibilities.  The review applicant gave oral evidence that she and her husband have discussed in detailed the troubled life the review applicant’s daughter, Nouf, has led and the needs she has.  The visa applicant has said he wants to be here to help his wife support and care for her mother and Nouf.

24. The Tribunal is satisfied that at the time of application the parties had been married for around six years and at the time of this decision have now been married for eight years.  They have resided together, in Lebanon, for well over half the period of the marriage, which impresses the Tribunal as a very substantial amount of time for an applicant for an offshore partner visa, where the parties are primary residents of two different countries.  They provide each other with emotional support and companionship and have done so for many years.  However, it is becoming increasingly difficult due to the limitations that the review applicant now has relating to her inability to travel and leave her mother and daughter.

25. The Tribunal finds that the parties have a mutual commitment to a shared life to the exclusion of all others; they are in a genuine and continuing relationship; and, as best they can in their circumstances, live together or not separately and apart on a permanent basis.

26. 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 at the time of this decision..

27. Therefore the visa applicant meets cl 309.221 of Schedule 2 to the Regulations.

    Are the sponsorship requirements met?

28. Clause 309.213 requires that the visa applicant is sponsored by the review applicant, where such person has turned 18; or where they have not, by the review applicant’s parent or guardian who has turned 18 and is either an Australian citizen, permanent resident or eligible New Zealand citizen (as defined in reg 1.03 of the Regulations).

29. At the time of decision, this sponsorship must have been approved and still be in force. For visa applications made on or after 18 November 2016 the sponsor must also have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence: cl 309.222. Approval of sponsorship is subject to limitations contained in reg 1.20J of the Regulations which sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship, and in reg 1.20KA which sets a limit on the period before which certain Parent visa holders can sponsor another person for a Partner visa. There are further limits imposed by reg 1.20KB in relation to sponsors charged with, or convicted of, certain offences where the visa application was made on or after 27 March 2010 and reg 1.20KC in relation to sponsors convicted of a relevant offence who have a significant criminal record where the visa application was made on or after 18 November 2016.

30. On the evidence, at the time of application, with reference to the requirements of cl 309.213 that are relevant in this case, the Tribunal finds:

    ·    the review applicant, who is the sponsor, was over 18 years of age;

    ·    that the sponsor has given the undertakings as required by reg 1.20;

    · on the basis of consideration having been given by the Tribunal to each of the matters in reg 1.15A(3) of the Regulations, the sponsor is the spouse of the visa applicant as defined in s 5F of the Act.

31. Regulation 1.20J of the Regulations sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship. Under reg 1.20J, a sponsor is limited to a total, in a lifetime, of two approved sponsorships or nominations that lead to a grant of a partner visa (or entry permit) or a visa (or entry permit) granted on the basis of the domestic violence provisions. If there has been one previous sponsorship or nomination, or if the sponsor was granted a visa or entry permit as a result of being sponsored, a period of 5 years must have passed since the date of the earlier visa application. These requirements apply unless the Minister, or the Tribunal on review, is satisfied there are compelling circumstances affecting the sponsor: reg 1.20J(2).

32. The sponsor in this matter has already exceeded the number of approved sponsorship under reg 1.20J.  This is not in dispute.

33. The expression ‘compelling circumstances’ is not defined in the legislation. The Tribunal must consider whether the circumstances are such that they evoke interest or attention in a powerfully irresistible way: Babicci v MIMIA [2004] FCA 1645 or are ‘so powerful that they lead the [Tribunal] to make a positive finding that the [provision] should be waived’: Babicci v MIMIA [2005] FCAFC 77.

34. The Tribunal has considered the facts and circumstances in this case, to decide whether they are compelling for the purpose of waiving the sponsorship limitation in reg 1.20J of the Regulations.  The Tribunal has considered documentary evidence on the Department and Tribunal files, and had the opportunity to have a long and meaningful conversation with the review applicant at the hearing.  The overriding and most significant factor supporting a finding that there are compelling circumstances affecting the sponsor, is that the Tribunal is satisfied that the parties are in a very long term and genuine married relationship; and that the sponsor’s circumstances are, at the time of this decision, such that she cannot, and it would be unreasonable to expect her to, live in Lebanon with her husband.  They were married in 2016, lived together in Lebanon for five years until the review applicant needed to return to Australia.  After that, the review applicant returned to Lebanon when she could.  However, COVID-19 and the review applicant’s increasing family caring responsibilities in Australia have ultimately prevented her from being able to spend any significant amount of time in Lebanon with her husband, or to live in Lebanon with him. 

35. At the time of this decision, with reference to the requirements of cl 309.222, the Tribunal finds:

    ·that the sponsorship is approved and in force; and

    ·the prospective sponsor has consented for the Department to disclose to each applicant any conviction for a relevant offence unless the conviction can be disregarded in accordance with cl 309.222(3).

36. On the evidence before the Tribunal, the requirements of cl 309.213 and cl 309.222 are met.

37. 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

38. 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 309,213 of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations

    ·cl 309.222 of Schedule 2 to the Regulations

    Jennifer Cripps Watts
    Senior 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).