Ghazalah (Migration)

[2020] AATA 6092

Ghazalah (Migration) [2020] AATA 6092 (18 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Laila Ghazalah

CASE NUMBER:  1835400

HOME AFFAIRS REFERENCE(S):          BCC2017/1572176

MEMBER:Russell Matheson

DATE:18 December 2020

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) of Schedule 2 to the Regulations; and

·cl.820.221(1)(a) of Schedule 2 to the Regulations.

Statement made on 18 December 2020 at 10:16am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 – sponsor’s medical condition – strong degree of companionship and emotional support – parties were legally married – credible and honest witness – decision under review remitted

LEGISLATION
Marriage Act 1961 (Cth)
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15, Schedule 2, cls 820.211, 820.221

CASES
He v MIBP [2017] FCAFC 206

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 (the Act).

2. The applicant is a 51-year-old female national of Syria. She applied for the visa on 28 April 2017 based on her relationship with her 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 (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 the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant seeks review of the delegate’s decision.

4. The applicant appeared before the Tribunal on 18 December 2020 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 Arabic and English languages.

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

   Background

6. The sponsor was previously married between 1981 to 1988 and there are four children from the relationship. The applicant has never been married and declares no previous relationship.

7. On 18 January 2017, the applicant was granted a Subclass TO300 Prospective Marriage visa for the purpose of travelling to Australia and to marry the sponsor within the validity of her visa. This TO300 Prospective Marriage visa was valid to 18 October 2017. She arrived in Australia on 4 April 2017.

8. On 23 August 2017, the Department requested the applicant to provide a certified copy of her marriage certificate and evidence of her sponsor’s immigration status in Australia. She was given 28 days to respond to this request and an email was sent to her nominated email address.

9. On 30 October 2017, the sponsor contacted the Department regarding the status of the applicant’s visa application and for Bridging B visa information.

10. On 1 November 2017, the Department again requested the applicant to provide a certified copy of her marriage certificate and evidence of the sponsor’s immigration status in Australia. She was given28 days to respond to this request and an email was sent to her nominated email address. She did not respond within the 28-day period.

11. On 30 November 2017, an Officer of the Department unsuccessfully tried to contact the applicant and sponsor through an interpreter.

12. On 5 December 2017, the Department requested the applicant to provide a certified copy of her marriage certificate and evidence of your sponsor’s immigration status in Australia. She was provided with 7 days to respond to this request and an email was sent to her nominated email address. She did not respond within the 7-day period. An Officer of the Department unsuccessfully tried to contact the applicant and sponsor again.

13. On 30 October 2018, the Department requested the applicant provide evidence of her relationship with her spouse amongst other documentation that were previously requested but not received.

14. The applicant provided two Form 888 statutory declarations which were submitted with the application with lodgement.

15. On 29 November 2018, the applicant was notified in writing by the Department that her visa application had been refused.

16. On 3 December 2018, the applicant lodged an application for review of the delegates decision with the Tribunal.

17. On 29 October 2020, the Tribunal received a request from Chris Bowen the Federal Member for McMahon regarding the applicants appeal for a Partner (Temporary) (Class UK) visa. He requested that the application be expedited due to strong compassionate and compelling circumstances due to the sponsors health issues.

18. On 1 December 2020 the Tribunal considered the request for priority in this case and responded in writing to Federal Member for McMahon that it had decided the case should be given priority.

19. On 3 December 2020, the Tribunal invited the applicant in writing to appear before the Tribunal after considering the information before it as it could not make a favourable decision on this information alone due to the limited evidence that had been provided.

20. On 11 December 2020, the applicant signed an agreement to waive the hearing notification period.

    Hearing

21. On 11 December 2020, the applicant provided the following evidence to the Tribunal that includes:

    ·A response to the hearing invitation;

    ·An agreement to waive the hearing notification period;

    ·Four statements from friends of the applicant and sponsor;

    ·Individual statements form the applicant and sponsor;

    ·A copy of the sponsors will, dated 4 November 2020;

    ·Photographic evidence of the parties wedding and social activities;

    ·Banks statements from the applicant and sponsor;

    ·A letter from Professor R the sponsors specialist dated 24 September 2020;

    ·A letter from [Organisation 1] dated 7 October 2020; and

    ·A letter from the sponsors GP dated 2 October 2020.

22. The sponsor gave evince at the hearing that he had not been well for some time and that earlier this year he had been diagnosed with [Medical Condition 1] and he was now mentally and physically reliant on his wife for care and support. He further stated that he has approximately [period] life expectancy. The applicant provided a letter from his doctor that confirms his condition and states:

    The sponsor is suffering from [Medical Condition 1] that reduces the sponsors quality of life and is lethal in most [cases].

23. The sponsor has provided a letter from his specialist Professor R indicating the sponsor has [Medical Condition 1] and is an unlikely to be a surgical candidate. The sponsor is said to be considered for [specified treatment]. He also provided a letter from [Organisation 1] confirming the sponsor’s diagnosis and that he will be treated with [specified therapies].

24. The sponsor also gave evidence oral and written that he suffers from [Medical Condition 2]. There is limited documentary evidence before the Tribunal to substantiate the sponsors claims regarding [Medical Condition 2], but the Tribunal accepts that the applicant has serious health concerns and requires a high degree of care and support physically and mentally and this is provided by the applicant.

    CONSIDERATION OF CLAIMS AND EVIDENCE

25. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act.

26. The Tribunal has before it the applicant’s file from the Department of Immigration (the Department); its own file; and a copy of the Department’s decision provided by the applicant to the Tribunal.

27. The evidence the parties provided at the Tribunal hearing is recorded throughout this decision record.

    Whether the parties are in a spouse or de facto relationship

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

29. ‘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 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 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 parties validly married?

30. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The issue in the present case is whether the applicant is the spouse of the sponsor as defined in s.5F of the Act. The applicant provided a copy of the marriage certificate registered under the Marriage Act 1961 indicating the applicant and sponsor were married at Merrylands, New South Wales, on 11 March 2017. There is no evidence before the Tribunal to indicate that the marriage is not valid. 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).

31. After careful consideration of all the evidence before it, the Tribunal has reached the conclusion that it is satisfied the applicant is the spouse of the sponsor within the meaning of s.5F of the Act. Below, the Tribunal sets out its consideration of the evidence under the relevant aspects of matters it must take into consideration under r.1.15A(3), and the reasons for its decision.

32. The Tribunal had the benefit of the applicant’s and the sponsor’s oral evidence at the hearing and found their evidence to be detailed, consistent and overall, credible. The Tribunal gave all the evidence provided by the parties at the Tribunal hearing and evidence provided by the applicant to the Department and the Tribunal file due regard. The applicant provided a limited amount of additional documentary and photographic evidence to the Tribunal.

33. The Tribunal acknowledges the delegate’s concerns set out in the primary decision record. The Tribunal discussed these with the applicant and the sponsor during the hearing and the Tribunal is satisfied that the parties were credible witnesses. 

    Are the other requirements for a spouse relationship met?

    Financial aspects

34. The Tribunal has considered the financial aspects of the relationship including any joint ownership of real estate or major assets, any joint liabilities, the extent of any pooling or sharing of financial resources, especially in relation to major financial commitments, whether any person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of daily household expenses.

35. The sponsor provided evidence of operating two personal accounts with a Westpac 55+ and Retired account indicating that his Centrelink pension is deposited into and monthly personal loan direct debits and Vodafone payments for the period 1 September 2020 to 7 December 2020. He also has a Westpac Choice account with one deposit for $200 on 24 April 2020. The applicant provided evidence of operating two personal account with Westpac a Choice Basic account and Westpac Choice account both with balances of $200 as of 10 December 2020. Her Choice Basic account had two deposits and four withdrawals for the period 23 December 2029 to 15 May 2020. The sponsor also provided evidence of use a Commonwealth Bank Australia (CBA) Mastercard to the Tribunal for the period 20 September 2018 to 13 December 2018 for day-to-day living expenses such as grocery shopping, fuel and online purchases with the review application. The parties confirmed they still use the same CBA Mastercard for day-to-day living expenses and household bills. The Tribunal accepts the parties live off limited budget and this is reflected in the minimal transactions depicted in their bank statements. The applicant has declared she is not working, and the sponsor is on the aged pension and the sponsor has a loan for $4,000 with the CBA which is being repaid monthly.

36. The parties stated that their financial resources are limited, and they basically live off the sponsors Centrelink pension. The sponsor gave evidence due to his health issues he has sold his house (5 December 2020) so that the applicant can pay for his funeral and purchase another property to live in. The sponsor provided a copy of his will dated 4 November 2020 leaving the applicant the executor and sole beneficiary of his will.

37. The parties gave detailed and consistent evidence in relation to the financial aspects of the relationship. The parties’ evidence is that they have no joint liabilities and no major assets such as property together. There is limited evidence before the Tribunal of pooling or sharing of financial resources or any ongoing financial obligations. There is no evidence before the Tribunal that one person in the relationship owes any legal obligation in respect of the other. The Tribunal accepts that the parties are prepared to share their financial resources and any ongoing or future financial responsibilities.

38. The Tribunal places some positive weight on this aspect of the relationship.

    Nature of the household

39. The Tribunal has considered the nature of the household, including any joint responsibility for the care and support of children, the living arrangements and daily routine of the parties, and the sharing of the responsibility for housework, to form an opinion as to whether the parties are living together and not living separately and apart on a permanent basis.

40. The parties gave consistent and detailed evidence of cohabiting at their current address at Merrylands. They provided detailed and consistent evidence of their personal history, living arrangements, household responsibilities, household purchases, daily routine and the care and support the applicant is providing to the sponsor regarding his health issues.

41. The parties provided a limited amount of documentary evidence or other correspondence addressed to them individually and jointly at their current address confirming that they are cohabiting. The sponsor confirmed the limited documentation in joint names is due to the applicant’s visa status. The Tribunal found the parties’ oral evidence persuasive. The parties stated that they have informed government authorities such as the Australian Taxation Office and Centrelink they are in a spousal relationship.

42. The Tribunal accepts that the parties live together, and they have established a joint household and share the responsibility of the housework. There are no children from the relationship.

    Social aspects

43. The Tribunal considered the social aspects of the relationship, including whether the parties represent themselves to other people as being married to each other, the opinions of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake social activities.

44. The parties provided a limited amount of documentary and significant photographic evidence of their social activities together and wedding. They provided evidence that they are socially recognised as husband and wife and engage frequently with family, friends and parishioners of their local church, presenting themselves in a committed spousal relationship. They also stated that this not as frequent now due to the sponsors health issues. The Tribunal accepts that the parties’ relationship is supported by their families based on the evidence presented and knowledge of each other’s family. The parties stated that they have not travelled overseas since first meeting due to financial constraints and living on the sponsors aged pension. The parties further stated that their social activities are limited due to the sponsor’s health issues. The sponsor stated that the parties are going to spend Christmas with his late in-laws in Port Kembla. They provided oral and photographic evidence that they had travelled together to Queensland for a holiday in 2017. The parties provided two Form 888 statutory declarations and five statements to the Tribunal from friends. The declarations state they have known the parties for a reasonable period and attest to the genuineness of the relationship. However, the statements give little insight into the inception and development of the relationship over time. The Tribunal places little weight on the statements as convincing evidence of the parties being in a genuine spousal relationship. 

45. Overall, the Tribunal accepts that the relationship is socially recognised by family and friends and they represent themselves to other people as being married to each other. The Tribunal accepts that the parties plan and undertake joint social activities together.

46. The Tribunal places some positive weight on the social aspects of the relationship.

    Commitment

47. The Tribunal has considered the nature of the parties’ commitment to each other, including the duration of the relationship, the length of time the parties have lived together, the degree of companionship and emotional support they provide each other and whether the parties view the relationship as a long-term one.

48. The parties claim to have been introduced to each other through a mutual friend and communicated with each through Facebook and messenger. They claim to have first met in Syria in August/September 2016 and were engaged. The parties were married in March 2017. The Tribunal accepts the parties are lawfully married. To date, the parties have been in a relationship for a period exceeding four years.

49. The sponsor declared that he had found the love of his life on the internet and believed that their relationship was long-term. The sponsor further stated that he has a terminal illness and has little time to share with his wife. The parties described in detail their commitment to each other and particularly the mental and [physical] and the care and support the applicant provides to him. The sponsor gave evidence that he is helping prepare the applicant for the future in his absence. He has recently sold his home so the applicant can pay for his funeral and they have made plans to downsize and purchase a unit for the applicant to live. The sponsor provided a copy of his will dated 4 November 2020 leaving the applicant the executor and sole beneficiary of his will. The parties provided strong evidence of supporting each other in sickness and health and financial pressure.

50. The Tribunal is satisfied that the parties see their relationship as stable, mutually supportive and a long-term one. The Tribunal considers their evidence regarding their commitment to each other plausible, persuasive and genuine.

1. The Tribunal notes that the applicant and the sponsor were able to articulate the reasons for their decision to form a relationship and spoke of their common interests, expectations and future.

2. The Tribunal is satisfied the parties provide each other with a strong degree of companionship and emotional support that is commensurate with a couple having a commitment to a shared life together. The Tribunal is satisfied the couple view their relationship as a long-term one.

   Findings

3. The Tribunal is satisfied, having had regard to the totality of the circumstances and the evidence provided at the hearing, that the applicant and the sponsor have a mutual commitment to a shared life to the exclusion of all others. The Tribunal is satisfied their relationship is genuine and continuing. The Tribunal is satisfied they live together and not separately and apart on a permanent basis. Having considered all the evidence and the circumstances of the relationship as detailed above, the Tribunal is satisfied the parties were in a spousal relationship at the time of application.

4. The Tribunal is satisfied that the sponsor is not prohibited from being a sponsoring partner and continues to sponsor the applicant. The Tribunal is satisfied that the sponsor, at the time of the visa application and decision, was an Australian citizen who had turned 18.

5. The applicant’s movement records provide evidence of her having been the holder of a Prospective Marriage (Subclass 300) visa at the time of application. She held this substantive visa upon applying for the Partner (Temporary) (Class UK) Subclass 820 visa on 28 April 2017. As the applicant held a substantive visa at the time of application, further requirements in cl.820.211(2)(d) need not be met.

6. Based on the above the Tribunal is satisfied that the requirements of s.5F(2)(b)-(d) of the Act were met at the time the visa application was made and are met at the time of this decision.

7. Therefore, the applicant meets cl.820.211(2) and cl.820.221(1)(a).

8. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for a Subclass 820 visa.

   DECISION

9. 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) of Schedule 2 to the Regulations; and

   · cl.820.221(1)(a) of Schedule 2 to the Regulations.

   Russell Matheson
   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).