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

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).
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.
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.
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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elomari (Migration)

Details

AGLC: Elomari (Migration) [2024] AATA 2344
Case: [2024] AATA 2344
Decision Date: 28 June 2024

CaseChat Overview and Summary

This matter concerned a review of a decision to refuse a Partner (Provisional) visa (Subclass 309). The review applicant, who is an Australian citizen, was the proposed sponsor for the visa applicant, who is their spouse. The primary reason for the refusal was that the proposed sponsor did not meet the requirements for sponsorship. The Tribunal was required to determine whether the visa applicant and the review applicant were spouses as defined by section 5F of the Migration Act 1958 (Cth) and whether the sponsor met the requirements for sponsorship.

The Tribunal was tasked with assessing whether the parties were in a married relationship, which requires a valid marriage, a mutual commitment to a shared life to the exclusion of others, a genuine and continuing relationship, and cohabitation or not living separately and apart on a permanent basis. In making this assessment, the Tribunal had to consider all circumstances of the relationship, including financial, social, and household aspects, as well as the parties' commitment to each other, as outlined in regulation 1.15A(3) of the Migration Regulations 1994. The Tribunal was satisfied that the parties were validly married in Lebanon in 2016, fulfilling the requirement of section 5F(2)(a).

The Tribunal concluded that the matter should be remitted for reconsideration. It directed that the visa applicant met certain criteria for the Subclass 309 visa, specifically clauses 309.213, 309.221, and 309.222 of Schedule 2 to the Regulations. This indicates that while the validity of the marriage was established, other aspects of the sponsorship or relationship criteria required further consideration by the Minister.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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. 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 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. ‘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? 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?

Decision

Reasons for decision

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 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 WattsSenior MemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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