Gabriel (Migration)

[2023] AATA 314

Gabriel (Migration) [2023] AATA 314 (20 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hajthem Gabriel

CASE NUMBER:  1829072

HOME AFFAIRS REFERENCE(S):          BCC2017/2058502

MEMBER:Ann Duffield

DATE:20 February 2023

PLACE OF DECISION:  Canberra

DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

Statement made on 20 February 2023 at 12:28pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – genuine and continuing relationship – joint business investment – joint utilities bills – joint bank account – limited evidence of shared finances and social activities – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 5, 65
Migration Regulations 1994, Schedule 2, cls 820.211, 820.221; r 1.15

CASES

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 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 applied for the visa on 10 June 2017 on the basis of his relationship with his sponsor. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 820.211 because they were not satisfied that the applicant was the spouse of the sponsor within the meaning of the Migration Act.

4. The applicant appeared before the Tribunal on 13 January 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The Tribunal hearing was conducted with the assistance of an interpreter in the Assyrian and English languages.

5. For the following reasons, the Tribunal has concluded that the decision under review be affirmed.

   Consideration of claims and evidence

6. The issue in the present case is whether the applicant is the spouse of the sponsor within the meaning of the Migration Act.

   BACKGROUND

7. The applicant is a citizen of Sweden born in Bagdad, Iraq.  He and his family migrated to Sweden in 1998. He is 48 years old. He has declared one previous de facto relationship from 2004 to 2007. There is one child from that relationship.  He has recorded a number of drug trafficking offences in Sweden between 2000 and 2012. On his marriage certificate he states that he is a chef.

8. The sponsor is an Australian citizen born in Indonesia. She is 42 years old. She first arrived in Australia on a tourist visa in 1996 and subsequently married an Australian citizen in 2001. There are three children from that relationship.  She has a sister in Australia and the remainder of her family reside in Indonesia. On her marriage certificate she states that she is a secretary.

   Before the Tribunal

9. The parties provided the Tribunal with a copy of the delegate’s decision. In a statement to the delegate, the sponsor claims that she and the applicant met online on around 10 February 2017 having been introduced by a mutual friend. They claim to have been in constant contact since that time. The applicant travelled to Australia on 29 March 2017 to meet the sponsor and they immediately moved in together. Several weeks later on 15 April 2017 the applicant proposed to the sponsor and they were married on 7 May 2017.

10. There is no corresponding statement by the applicant on the department’s file.

11. In a supporting letter from a mutual friend dated 23 October 2022, it is claimed that the parties invested in a start-up company with the intention of providing NDIS services however they failed to secure any contracts. Nevertheless, this demonstrates that they invested their savings together and both names were in the contract.  The parties share the same bedroom and have a traditional marriage. The friend also states that the sponsor and the applicant “sold everything, gave up their lease and moved to Sweden” and the applicant was successful in gaining Swedish residency.

12. The parties’ movement records show that the applicant departed Australia on 25 July 2022 and returned on 8 November 2022. The sponsor departed Australia on 6 July 2022 and returned on 12 September 2022.

13. The parties provided the Tribunal with a copy of an electricity bill for the period 4 September 2020 to 3 October 2020; a copy of a Telstra bill for 03 October to 02 November 2020 both addressed to the applicant and the sponsor at their address in Lily Street Wetherill Park. They also provided a copy of an electricity bill in both their names for the address in Wetherill Park for the period 8 July- 3 August 2022 and a tenancy ledger showing rent payments in both their names.

14. The parties also provided a number of photographs of themselves together and with others in a variety of situations, including two of them in Europe.

15. There was no other evidence on the Tribunal file at the time of the scheduled hearing.

16. At the hearing the Tribunal asked the applicant if there was any more evidence and he said that all had been provided. It transpired however that the parties believed that their agent had supplied further evidence, including financial records such as bank accounts, which the Tribunal had not received. They undertook to provide the relevant material after the hearing. Having received some information, but not all that was sought, the Tribunal wrote to the parties seeking specific information which was due on 15 February 2023.

17. Some of that additional evidence was provided and included several more photographs, bank statements, a personal statement from the applicant and his relationship with the sponsor, contract of sale for his restaurant in Sweden, evidence of cash transfers to the parties from Sweden to finance the establishment of their failed NDIS business and other material referred to in the findings and reasons below, where relevant.

18. Whether the parties are in a spouse or de facto relationship

19. Clauses 820.211 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. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.

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). 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), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

21. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. A copy of the couple’s marriage certificate is at Folio 105 of the department’s file. It shows they were married on 7 May 2017 at Fairfield, NSW. 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 other requirements for a spouse relationship met?

22. The Tribunal has considered the financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

23. The couple have provided a copy of their joint Commonwealth bank account for the period December 2021 to June 2022. It shows a number of cash transfers and general living expenses along with the sponsor’s paycheck and some jobseeker and family tax benefit payments. Rent payments also appear to come out of this account for the relevant period.

24. The parties told the Tribunal of the applicant’s past windfalls from the sale of his restaurant in Sweden in 2011, his apparent savings from his previous employment as an engineer and the sale of his apartment in Greece. They have provided a document which purports to be the contract for the sale of the restaurant, however it is not translated to English and there is no record of the deposit of funds from that sale in the parties’ financial records.

25. There are no significant payments or transactions in their joint bank account for the period prior to their departure in July 2022 for Sweden to reflect the funds allegedly received from the sale of the applicant’s apartment in Greece nor is there a contract of sale.

26. The parties told the Tribunal that the AUD$90,000 they invested into a start-up company providing services to the NDIS was transmitted to Australia in cash, in the pockets of visiting family and friends. After the hearing, the parties provided the Tribunal with some screen shots of a number of payments made from an ANZ account totalling $90,000. The parties subsequently provided the ANZ statements in response to the Tribunal’s written request for information, which reflect a number of transactions that relate to this purchase along with a handwritten contract of partnership between the applicant and another person for the setup of a company to provide disability services called “Coz We Care”.

27. The Tribunal has some concerns about the validity and the authenticity of the proposed partnership arrangement between the applicant and Guilda Tabar and Coz We Care, however its larger concerns arise from the parties’ financial arrangements between July 2022 and the date of this decision.

28. The sponsor is the sole holder of the ANZ account through which the transactions for the alleged business partnership were conducted however they do not go beyond January 2021. There is no explanation as to what happened to this account after that date. Similarly, the parties joint Commonwealth Bank Account for the period July to December 2022 shows some transactions including the deposit of the sponsor’s pay, but no activity in relation to rental payments, or any activity in relation to the applicant past July 2022 that one might expect in the context of spending in a joint household.

29. Despite requesting specific financial information from the parties, both at the hearing and subsequently in writing after the hearing, there is insufficient evidence of the financial aspects of the parties’ relationship before the Tribunal to support a claim that they are in a genuine and ongoing spousal relationship.

30. The Tribunal has considered the nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

31. The applicant moved into the sponsor’s rental home when he arrived from Sweden in March 2017. The sponsor was the sole lessor of that property, and she has provided a tenancy ledger showing payments until October 2019 for an address in Smithfield. They have also provided a tenant payment history with both their names on it for a property at Lily Street in Wetherill Park until June 2022. They departed Australia at around this time to travel to Sweden with the intention of the sponsor gaining Swedish residency. The parties told the Tribunal that their visa application had been refused by the Department of Home Affairs and they just wanted to be able to live somewhere together. It transpired that the sponsor’s application has not been finally decided and may not be approved because the applicant must have a full-time job and demonstrate that he can support the sponsor before her residency will be approved. They decided to come back to Australia and took out a lease on a small studio apartment. However there has been no evidence provided of the parties’ current living arrangements.

32. The sponsor returned to Australia on 12 September 2022 as she said she had to return to work. Her pay is reflected from this period in her bank statement. The applicant did not return until 8 November 2022. He claimed that he wanted to remain with his family and give the sponsor time to arrange some accommodation.

33. The Tribunal is mindful that the parties have only returned to Australia in the past several months, however they have provided no documentary evidence of their new residence despite a specific written request from the Tribunal both at the hearing and subsequently in writing to do so. There is no rental agreement, no utility or other bills in their names going to that address. However, the Tribunal notes that their joint Commonwealth Bank account statement for the period July to December 2022 has been sent to a Hamilton Road address in Fairfield. There are no indications that rent is being paid to that or any other address, from this account and there do not appear to be any transactions in relation to the applicant on that account after around July 2022.

34. The Tribunal is not satisfied that at the time of its decision there is sufficient evidence of the nature of the parties’ household to support a finding that the parties are in a genuine, ongoing and exclusive spousal relationship or that they live together.

35. The Tribunal has considered the social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

36. The parties appear to have met members of each other’s families, with the sponsor travelling with the applicant to Sweden to meet and stay with his family and the applicant travelled to Bali and met with the sponsor’s brother whilst on holiday. There are a number of photographs of the parties together and with others in a variety of locations, including over is testimony from a mutual friend of the couple providing details of his observations of their lives together such that the Tribunal gives this statement some positive weight. It appears that the children of the sponsor have accepted the applicant as their mother’s partner and the evidence is that they spend time together frequently simply as part of their day to day lives, at least up until the time the parties departed Australia in around July 2022. The parties asked the Tribunal at the hearing if they could provide evidentiary statements from their family members to support their claims and the Tribunal assured them that it would consider all evidence. However, at the time of this decision the parties did not provide any supporting statements of their relationship from members of their respective families.

37. The parties told the Tribunal that they spend most of their time together. He has one friend and the sponsor frequently sees her sister and her children spend a lot of time with them as well.

38. The Tribunal is not satisfied that there is sufficient evidence of the social aspects of their relationship to support a finding that they are in a genuine and continuing spousal relationship or that they live together at the time of the Tribunal’s decision.

39. The Tribunal has considered the nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

40. The inception of the parties’ relationship and subsequent marriage was extremely swift. They met for the first time and married within just three months with the applicant making a significant commitment in travelling from Sweden to Australia at the end of March 2017. They told the Tribunal that they instantly got along at their first meeting, and it was not a difficult decision for them to marry.

41. The parties told the Tribunal that the applicant had not been working for around six years prior to his departure from Sweden. The applicant said that he had a very bad marriage breakdown, and he was in a difficult situation. He sold his restaurant in around 2011 and did not have a home to sell so it was easy for him to leave Sweden to come to Australia and live with the applicant.

42. They have provided limited evidence to support their claims, The Tribunal acknowledges that there are several photos of the parties together and with others at various locations, including Europe. The Tribunal also accepts that there is some relevant evidence of their joint habitation and a spousal relationship prior to their respective and separate returns to Australia in September and November 2022. However, there is very limited, if any, evidence of their continuing relationship after that time to support a claim that they remain living together in a mutually exclusive spousal relationship.

43. On the basis of the above the Tribunal is not 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.

44. Therefore the applicant does not meet cl 820.211 and cl 820.221.

    decision

45. Given the findings above, the Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Ann Duffield
    Senior Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (1)For subsection 5F (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5F (2) (a), (b), (c) and (d) of the Act exist.

    (2)If the Minister is considering an application for:

    (a)a Partner (Migrant) (Class BC) visa; or

    (b)a Partner (Provisional) (Class UF) visa; or

    (c)a Partner (Residence) (Class BS) visa; or

    (d)a Partner (Temporary) (Class UK) visa;

    the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).

    (3)The matters for subregulation (2) are:

    (a)the financial aspects of the relationship, including:

    (i)       any joint ownership of real estate or other major assets; and

    (ii)      any joint liabilities; and

    (iii)     the extent of any pooling of financial resources, especially in relation to major financial commitments; and

    (iv)    whether one person in the relationship owes any legal obligation in respect of the other; and

    (v)     the basis of any sharing of day to day household expenses; and

    (b)the nature of the household, including:

    (i)       any joint responsibility for the care and support of children; and

    (ii)      the living arrangements of the persons; and

    (iii)     any sharing of the responsibility for housework; and

    (c)the social aspects of the relationship, including:

    (i)       whether the persons represent themselves to other people as being married to each other; and

    (ii)      the opinion of the persons’ friends and acquaintances about the nature of the relationship; and

    (iii)     any basis on which the persons plan and undertake joint social activities; and

    (d)the nature of the persons’ commitment to each other, including:

    (i)       the duration of the relationship; and

    (ii)      the length of time during which the persons have lived together; and

    (iii)     the degree of companionship and emotional support that the persons draw from each other; and

    (iv)    whether the persons see the relationship as a long term one.

    (4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).