FAHME (Migration)

[2023] AATA 3079

FAHME (Migration) [2023] AATA 3079 (20 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ADNAN FAHME

REPRESENTATIVE:  Ms Amina Youssef

CASE NUMBER:  1601442

HOME AFFAIRS REFERENCE(S):          CLF2013/257640

MEMBER:Kira Raif

DATE:20 September 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

·cl 820.211(2)(a) of Schedule 2 to the Regulations

·cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations

·cl 820.221 of Schedule 2 to the Regulations

Statement made on 20 September 2023 at 12:11pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – primary notification affected by error – relationship ceased – no substantive visa at the time of application – compelling reasons – sole parental responsibility of an Australian citizen child – joint residential tenancy agreement and utility bills – joint bank statements – previous mutual commitment to a shared life – decision under review remitted          

LEGISLATION

Child Support (Assessment) Act 1989
Family Law Act 1975
Migration Act 1958, ss 5, 65, 66
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; Schedule 3, Criterion 3001; r 1.15

CASES

Babicci v MIMIA (2005) 141 FCR 285
He v MIBP [2017] FCAFC 206
MZYPZ v MIAC [2012] FCA 478
Plaintiff M64/2015 v MIBP [2015] HCA 50
Sandor v MICMA [2023] FCA 434
Srour v MIMIA (2006) 155 FCR 441
Waensila v MIBP [2016] FCAFC 32

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 and Border Protection to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Lebanon, born in February 1984. He applied for the visa on 18 October 2013 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211 because the delegate was not satisfied the applicant was the spouse of the sponsor and also because the delegate was not satisfied the applicant met the requirements in Item 3001 of Schedule 3.

3. The applicant sought review of the Tribunal’s decision. In March 2016 the Tribunal had found that it had no jurisdiction to consider the matter as the application for review was lodged out of time. In November 2016 the Court dismissed the application’s application for judicial review of the Tribunal’s decision.

4. In April 2023 the applicant requested the Tribunal to reconsider whether it had jurisdiction to conduct the review, claiming that the primary notification was affected by several errors.

5. The Tribunal has formed the view that the primary notification was affected by the error identified in Sandor v MICMA [2023] FCA 434. In that case, the Court held that the notification letter in question did not comply with s 66(2)(d)(ii) and that where an authorised recipient had been appointed in relation to the visa application, if the notification letter does not make clear that the prescribed period starts to run from when the authorised recipient is taken to have received it, the notification letter will not be valid and the prescribed period to make a review application will not have started to run.

6. The Tribunal is of the view that the Department’s notification letter is invalid because it was not sufficiently clear to enable the applicant to calculate the time in which a review application must be lodged. The Tribunal thus finds that the prescribed time limit for applying for review has not started to run and the application has been validly made. The Tribunal finds that it has jurisdiction to consider the matter.

7. No hearing was held in this case as the Tribunal was able to make a favourable decision on the material before it. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   Relevant law

8. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.’ Spouse’ is defined in s.5F of the Act.

9. Clause 820.221(3)(b)(ii) allows for the grant of the visa where the relationship between the applicant and the sponsoring partner has ceased, and there is a child in respect of whom the applicant has custody, access, or a residence or contact order made under the Family Law Act 1975. The sponsor must also have these rights, or a child maintenance obligation.

10. A person can have a right to custody as an incident of the statutory imposition of parental responsibility by operation of the Family Law Act in relation to a biological child. Similarly, a person can have a formal maintenance obligation to a biological child without a court order, by operation of the Child Support (Assessment) Act 1989 rather than the Family Law Act: Srour v MIMIA (2006) 155 FCR.

11. An applicant who is not the holder of a substantive visa at the time of application must meet certain criteria in Schedule 3 to the Regulations. With limited exceptions not relevant to this case, he or she must satisfy Schedule 3 criteria 3001, 3003, and 3004 unless the Minister is satisfied that there are compelling reasons for not applying those criteria: cl.820.211(2)(d).

12. It is not in dispute that the applicant in the present case did not have a substantive visa at the time of application. As the applicant did not enter Australia as the holder of a Subclass 995 visa or special purpose visa, it is necessary to consider whether the applicant satisfies the Schedule 3 criteria unless there are compelling reasons for not applying those criteria.

    Does the applicant meet Schedule 3 criteria?

13. The applicant provided to the Tribunal a copy of the primary decision record. It states that the applicant arrived in Australia in February 2008 holding a Student visa and was refused an application for another Student visa. He had also made an application for Ministerial intervention and other applications, which were refused. The delegate noted that the applicant’s Student visa expired in June 2010.

14. The Tribunal finds, having regard to that information, that the last day the applicant held a substantive visa was when his Student visa expired in June 2010. The Tribunal finds that the applicant was not a holder of a substantive visa at the time he made the application for the Partner visa in October 2013. There is nothing to suggest that the applicant entered Australia as a holder of a Subclass 995 (Diplomatic) visa or as a special purpose visa holder. The Tribunal is not satisfied the applicant meets cl. 820.211(d)(i). The applicant is required to satisfy the Schedule 3 criterion 3001 for the purpose of cl. 820.211(d)(ii).

15. There is nothing before the Tribunal to indicate that the applicant held an entry permit that was valid up to and including 31 August 1994. There is nothing to indicate that the applicant became an illegal entrant before 1 September 1994. There is nothing to indicate that the applicant ceased to hold a criminal justice visa on or after 1 September 1994 or that he entered Australia unlawfully on or after 1 September 1994. There is nothing to suggest that the last substantive visa held by the applicant was cancelled and the Tribunal has made a decision to set aside and substitute the cancellation decision.

16. The Tribunal has found that the applicant ceased to hold a substantive visa when his Student visa expired in June 2010. The Tribunal finds that that date is the ‘relevant day’ within the meaning of subclause 3001(2)(c)(i) of Schedule 3. As his application for the Partner visa was made in October 2013, the Tribunal is not satisfied that the application was validly made within 28 days after the relevant day. The Tribunal is not satisfied that the applicant meets Item 3001.

17. Clause 820.211(d)(ii) allows for this criterion to be waived if the Tribunal is satisfied that there are compelling reasons for not applying the criterion.

    Compelling reasons

18. The expression ‘compelling reasons’ is not defined for these purposes. However, reasons that are compelling should ‘force or drive the decision-maker’ ‘irresistibly’ to some end: Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31]. The reasons or circumstances should be sufficiently powerful to lead a decision-maker to find that the criteria should not be applied: MZYPZ v MIAC [2012] FCA 478 at [10]; Babicci v MIMIA (2005) 141 FCR 285 at [24]. Circumstances which constitute ‘compelling reasons’ for not applying the Schedule 3 criteria can arise at any time, including after the visa application is made: Waensila v MIBP [2016] FCAFC 32.

19. The applicant provided to the Tribunal a copy of a birth certificate relating to the child of the relationship, born in July 2018. The applicant also provided a copy of the Order of the Federal Circuit and Family Court made in November 2022 granting him the sole parental responsibility in relation to the child and allowing the child to live with the father.

20. The Tribunal is of the view that the existence of an Australian citizen child from the applicant’s relationship with the sponsor, and the applicant’s ongoing parental responsibilities in relation to the minor child, constitute a compelling reason for not applying the Schedule 3 criteria.

21. The Tribunal is satisfied that there are compelling reasons for not applying the Schedule 3 criteria. Accordingly, the applicant meets cl 820.211(2)(d)(ii).

    Was the applicant the spouse of the sponsor at the time the application was made?

22. Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen.

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

24. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided with the application a copy of the marriage certificate showing that he and the sponsor registered their marriage in June 2013 in Auburn, NSW. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied 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).

25. The primary decision record indicates that the applicant provided minimal documentary evidence of the relationship when the application was made. The applicant provided a small amount of further documentary evidence to the Tribunal. This includes a copy of the residential tenancy agreement in the applicant’s and sponsor’s names and a joint bill. There is a statement from Dr Aukidy which refers to the sponsor’s condition and states that since she met the applicant, she feels better and found him supportive and helpful in managing her condition. The Tribunal has been provided with copies of the couple’s joint bank statements, several statements from third parties, a number of social photographs of the couple and evidence of their social media posts, as well as medical records relating to the sponsor.

26. While the Tribunal considers the above documents inadequate, the Tribunal places significant weight on the fact that the couple had a child born in 2018 and the medical records refer to a previous miscarriage. Having regard to that fact, and the additional evidence referred to above, as well as the evidence submitted with the primary application, the Tribunal is satisfied, on balance, that at the time of the application, the applicant and the sponsor did have a mutual commitment to a shared life as husband and wife to the exclusion of all others, that their relationship was genuine and continuing and that they lived together. The Tribunal finds that when the application was made, the applicant was the spouse of the sponsor. He meets cl. 820.211(2)(a).

    Are the time of decision requirements met?

27. There is very little documentary evidence before the Tribunal to indicate that at present, the applicant continues to be the spouse of the sponsor. There is no evidence that at the time of this decision, the applicant and the sponsor continue to live together or not apart on a permanent basis or that they maintain a joint household or share housework. There is no evidence that they share their finances, have joint liabilities or jointly contribute to expenses. There is no evidence that the applicant and the sponsor continue to represent themselves to others as being in a relationship or that they socialise together. There is no evidence that there continues to be a mutual commitment to the relationship or that the parties draw companionship and support from each other.

28. As noted above the applicant presented court orders made in November 2022 concerning the custody of the child of the relationship. These orders suggest that the applicant is no longer in a spousal relationship with the sponsor.

29. The Tribunal is not satisfied on the limited evidence before it that at the time of this decision, the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied that at the time of this decision, the applicant is the spouse or the de facto partner of the sponsor.

30. However, as noted above, the applicant presented to the Tribunal a copy of the child’s birth certificate which identifies the applicant and the sponsor as parents. As there is a biological child of the applicant and the sponsor, and having regard to the reasoning in Srour, the Tribunal finds that the applicant meets cl. 820.221(3) and cl. 820.221.

    Conclusion

31. 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 820 visa.

    DECISION

32. The Tribunal remits the application for a Partner (Temporary) (Class UK) visa, with the direction that the applicant meets the following criteria for a Subclass 820 (Partner) visa:

    ·cl 820.211(2)(a) of Schedule 2 to the Regulations

    ·cl 820.211(2)(d)(ii) of Schedule 2 to the Regulations

    ·cl 820.221 of Schedule 2 to the Regulations

    Kira Raif
    Senior Member