Ghazzi (Migration)

[2023] AATA 3821

Ghazzi (Migration) [2023] AATA 3821 (17 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Mounira Hamad Ghazzi

VISA APPLICANT:  Mr Abdul Aziz Sidawi

REPRESENTATIVE:  Mr Zaheer Khan (MARN: 0743622)

CASE NUMBER:  1907059

DIBP REFERENCE(S):  BCC2018/1825194

MEMBER:M. Edgoose

DATE:17 October 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 17 October 2023 at 12:21pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – no response to s.359(2) invitation – financial aspects – nature of the household – social aspects – nature of the commitment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

CASES
Hasran v MIAC [2010] FCAFC 40
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 23 January 2019 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 26 April 2018 on the basis of his relationship with his 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 309.211 and cl 309.221.

4. Prior to this matter being constituted to a member the Tribunal sent an outreach letter to the review applicant on 16 February 2023 requesting information on her relationship in accordance with reg 1.15A. This request for information was to be received by 2 March 2023. As at time of constitution no response had been received and on 2 October 2023 the member wrote to the review applicant pursuant to s 359(2) of the Act. 

5. On 2 October 2023 the Tribunal wrote to the review applicant pursuant to s 359(2) of the Act, inviting the review applicant to provide information about her relationship with the visa applicant in writing.

6. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 16 October 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

8. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

10. 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.

11. ‘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?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The review applicant submitted to the Department a marriage certificate that took place on 25 September 2017 in Lebanon. 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?

13. On 25 March 2019 the review applicant submitted an Application for Review Form to this Tribunal to have the delegate’s decision reviewed. The only evidence submitted on this date was an accommodation receipt dated 18 April 2018 and a copy of the visa applicant’s passport photo page.

14. On 19 August 2020 the review applicant’s representative informed the Tribunal that he was no longer the representative for this matter and that he wished to withdraw his representation. The Tribunal responded to this request on 21 August 2020 informing the representative that he need to have the review applicant complete and sign a MR6 change of contact details form stating the change of representation. At time of this decision this form has never been completed or submitted. Therefore, the representative remains the same, that being Mr Zaheer Khan (MARN: 0743622).

15. As of the date of this decision no new evidence regarding reg 1.15A(3) has been submitted to the Tribunal since 25 March 2019 when the review applicant applied to this Tribunal to have the delegate’s decision reviewed. Given this the Tribunal has referred to the delegate’s decision which had already considered the evidence on the Department file.

16. Regarding the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of persons' commitment to each other, there is no new evidence before the Tribunal that was not considered by the delegate. Given this and the lack of engagement buy the review applicant and having given regard to all the evidence and information that was submitted to the Department at the time the visa application was lodged and at the time of this decision the Tribunal is not satisfied that the couple meet the requirements of reg 1.15A(3).

17. 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 the time of this decision.

18. Therefore, the visa applicant does not meet cl 309.211 and cl 309.221.

19. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

20. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    M. Edgoose
    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).