Habib (Migration)

[2018] AATA 5899

Habib (Migration) [2018] AATA 5899 (7 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Julie Habib

VISA APPLICANT:  Mr Nader Al Ali

CASE NUMBER:  1714498

DIBP REFERENCE(S):  OSF2016/015119

MEMBER:Robert Wilson

DATE:7 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

·cl.300.211, 212A, 213 & 222, of Schedule 2 to the Regulations.

Statement made on 07 December 2018 at 9:53am

CATCHWORDS
MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – compelling circumstances – danger in home country – mental health issues – family illness – carer – five-year limitation – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.20, Schedule 2 cls 300.211, 300.212A, 300.213, 300.222

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 to refuse to grant the visa applicant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 December 2016. At the time the visa application was lodged, Class TO contained only one subclass: Subclass 300 (Prospective Marriage). The criteria for a Subclass 300 visa are set out in Part 300 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 3 July 2017 on the basis that the delegate was not satisfied that compelling circumstances affecting the review applicant (hereinafter referred to as ‘the sponsor’) exist to the degree necessary to exercise the waiver at Regulation 1.20J(2) in relation to the application.  As a result, the delegate did not approve the sponsor’s sponsorship of the applicant.

4. The sponsor appeared before the Tribunal on 28 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant (referred hereinafter as ‘the applicant’), Mr Nader Al Ali. The sponsor’s sister, Ms. Jihane Habib, also provided evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

5. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case are the compelling circumstances affecting the sponsor in Regulation 1.20J(2) in relation to the application.

   Does the applicant intend to marry an eligible person?

8. Clause 300.211 requires that at the time of application the applicant intends to marry a person who is an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In this case, the sponsor is an Australian permanent resident. The couple has an intention to marry having provided a document by Sheik Mohamad Hbous, Religious and Civil Marriage Celebrant at Ashcroft, Australia when on 3 November 2016 he wrote that he had received a Form 13 and he performed a ceremony for the applicant and the sponsor on 29 July 2017.  However, the sponsor and the representative have said they were there at the time and they both stated that Sheik Mohamad Hbous had made a mistake and he clearly stated that he ‘will perform’ the ceremony and not ‘performed a ceremony.’ The sponsor crossed out the word ‘performed’ and signed her name, ‘Julie.’ The sponsor further added in writing to the document, ‘I was present at that time.’ She also added her name, ‘Julie’ and the date ‘28/Nov/2018.’  The Tribunal accepts this evidence. 

   Was the visa applicant 18 at the time of application?

9. Clause 300.212A requires the applicant to have turned 18 at the time of application (7 December 2016).  As the applicant was born on 17 September 1991, he is presently 27, and he was 18 in 2009.  Cl.300.212A is met.

10. Clause 300.212 requires that at the time of application the sponsor is not prohibited from being a sponsor in certain circumstances where she was granted a woman-at-risk visa in the five years immediately preceding the current visa application. Clause 300.212 is not applicable to the applicant and/sponsor. 

    Is the visa applicant sponsored as required?

11. Clause 300.213 requires that at the time of application (7 December 2016) the applicant is sponsored by the sponsor, and that the sponsor has turned 18. That is, the applicant is sponsored by the prospective spouse (sponsor), and the sponsor has turned 18.  The sponsor was 26 at the time of application. Therefore, cl.300.213 is satisfied.

12. Clause 300.222 requires that the sponsorship referred to in cl.300.213 has been approved and is still in force.  Approval of sponsorship is subject to a number of limitations contained in the Regulations including the following: r.1.20J sets a limit on the number of people that a person can sponsor in a lifetime and a minimum time that must lapse between each sponsorship; r.1.20KA limits the period before which certain Parent visa holders can sponsor another person for a Partner visa; r.1.20KB limits sponsorship by persons charged with, or convicted of, certain offences (where the visa application was made on or after 27 March 2010); r.1.20KC limits sponsorship by persons convicted of a relevant offence in relation to which they have a significant criminal record (where the visa application was made on or after 18 November 2016). The Tribunal assesses the sponsor’s sponsorship to be eligible.

13. The visa application in this case was made on 7 December 2016. For visa applications made on or after 18 November 2016, it also requires the prospective spouse (that is, the sponsor) to have consented for the Department to disclose to each sponsored applicant any conviction for a relevant offence, unless the conviction has been quashed or otherwise nullified, or where the sponsor has been pardoned with the effect that he or she is taken never to have been convicted of the offence.

    Reg 1.20J: Limitation on approval of sponsorships - spouse, partner, prospective marriage and the interdependency visas.

    Sub regulation (1):  Subject to sub regulations 2 and 3, if a person applies for a visa mentioned in sub regulation (1AA) as the spouse, de facto partner or prospective spouse of the sponsor, the Minister must not approve the sponsorship of the applicant unless the Minister is satisfied that:

    (a)not more than one other person has been granted a relevant permission as:

    (i)the spouse, facto partner or prospective spouse of the sponsor on the basis of a sponsorship or nomination; or

    (ii)a person who ceased a relationship of a kind mentioned in subparagraph (i) with the sponsor after the person, or another person mentioned in the prescribed criteria for the visa, had suffered family violence committed by the sponsor; and

    (b)if another person has been granted a relevant permission in the circumstances referred to in paragraph (a) - not less than five years has passed since making the application for the relevant permission; and

    (c)if the sponsor was granted a relevant permission as the spouse, de facto partner or prospective spouse of another person on the basis of a sponsorship or nomination-not less than five years has passed since the date of making the application for that relevant permission.

    (1A)     In subregulation (1):

    relevant permission means:

    (a)in relation to an application for a visa referred to in sub regulation (1AA) made during the period from 1 November 1996 to 30 July 1997 (inclusive) - a visa; and

    (b)in relation to an application for a visa referred to in sub regulation (1AA) made on or after 1 July 1997 – permission (other than a visa or entry permit) granted under the Act to remain indefinitely in Australia, a visa or an entry permit.

    (2 ) Despite subregulation (1), the Minister may approve the sponsorship of an applicant for a visa if the Minister is satisfied that there are compelling circumstances affecting the sponsor.

    7         THE  REG 1.20J(2) WAIVER  PROVISION

    7.1 About the waiver

    Regulation 1.20J(2) allows officers to approve a sponsorship that would otherwise fail to meet regulation 1.20J(2) requirements if there are ‘compelling circumstances’ affecting the sponsor.  As a matter of law, all cases must be assessed against the provisions of regulation 1.20J(2).

    7.2 Compelling circumstances affecting the interests of the sponsor

14. Under policy, compelling circumstances affecting the interests of the sponsor were provided in a non-exhaustive list provided by the Department.

    BACKGROUND

15. The applicant, Nader AL ALI, born on 17 September,1991, is a Lebanese male who has declared no previous relationships.

16. The sponsor, Julie Habib, born on 15 January 1990, is a Lebanese born female currently residing in Australia, who arrived in Australia on 6 July 2013 on a Prospective Spouse visa.  She has declared one previous relationship with Toufyk AHMAD who she first met in 2008 and they were engaged on 5 November 2012, and they broke up on 1 October 2013. There are no children from this relationship.

17. The sponsor was sponsored for an offshore Prospective Marriage (class TO) subclass 300 visa.  The application was lodged on 18 December 2012. The sponsor arrived in Australia on 6 July 2013 with the intent to marry her then fiancee.  However, the sponsor called off the wedding once disturbing facts about her ex-fiancee surfaced and she chose to end the relationship on 1 October 2013.

18. The sponsor had established a residence in Australia during her previous relationship and became the primary carer for her grandmother.  A Carer visa was lodged on 10 March 2014.

19. The sponsor travelled briefly to Lebanon and was engaged on 1 July 2014.  She returned to Australia when a Protection visa was lodged and granted on 18 March 2016. The Sponsor returned to Lebanon briefly in September 2016 to visit her ill mother.  A medical certificate has been provided.

20. After the engagement, and building their long-distance relationship, the applicant’s visa was lodged on 7 December 2016.

21. The sponsor and the applicant are now aware that had they waited out the five-year limitation, it is likely they would not have faced a visa refusal.

22. It is noted that the five year limitation ended on 17 December 2017 and at the present time, the sponsor is no longer restricted by regulation 1.20J.

23. It was further submitted that the legal advisor noted that regulation 1.20J is a time of decision requirement: Reg 300.22.

24. The Tribunal is satisfied the sponsor is no longer prohibited by reg.1.20(J), and it is remitted for further assessment.

25. The Tribunal is satisfied that the 5 year period has now expired, and the Tribunal does not need to proceed onto a consideration of ‘compelling circumstances’ under r.1.20J(2).  However, the Tribunal has considered ‘compelling circumstances’ for further and better assurance, as follows.       

    The five year limitation

26. The Tribunal accepts the following compelling circumstances affecting the interests of the sponsor.

27. When the sponsor’s first relationship failed with her previous fiancee, she suffered depression. She was not put on medication, but her doctor talked to her all the time, and it was a type of therapy. The sponsor informed the Department of Immigration about what happened to her and then she continued looking after her grandmother, especially at night, attending to her hygiene, showering her, cooking for her, and giving her the medication.  The sponsor sleeps with her grandmother sometimes, but not all the time.  However, all night the sponsor is with her grandmother. The grandmother has blood pressure issues, heart problems and diabetes.

28. Her grandmother already has a carer, but the sponsor likes being with her grandmother, and to help around the house. The sponsor stated that her grandmother fully relies on her; the love and support that she gives for her grandmother cannot be given by anyone else.  Her grandmother lives in Sydney.

29. The sponsor has provided evidence that her dedication to her grandmother gave her the opportunity that the applicant and her fiancee, Nader, are now committed to be husband-and-wife in the near future. The sponsor has indicated that she and her fiancee have become engaged. Nader accepted that when he comes to Australia he will live with the sponsor and her grandmother and they will continue looking after the sponsor’s grandmother.

30. The sponsor has indicated that she would be lost without the applicant, Nader, if compelling circumstances are not accepted.  Further, she will be devastated and she cannot live permanently in Lebanon due to the situation which is still volatile and her fiancee who is a soldier in the Lebanese Army, has told his superior that he wished to resign because of his fiance and any negative decision to refuse her sponsorship, affecting her as a permanent resident of Australia, and seriously affecting her grandmother who cannot be with her.

31. The present applicant and the sponsor have been together for a long time and the sponsor cannot imagine continuing without this relationship.

32. The sponsor expressed the view that she would be depressed/sad if something went wrong. The family doctor has diagnosed the sponsor as having stress.

33. The sponsor was asked about the situation in Lebanon.  She stated that there was a war zone in Tripoli.  She said at the Tribunal hearing that it was still the same, but not continuous.

34. The applicant (the sponsor’s fiance) gave oral evidence by phone to the Tribunal during the hearing. He said he and the sponsor met in 2008, and became more serious in 2014. 

35. The Tribunal asked the applicant regarding the situation in Lebanon, particularly where his fiance’s family live.  He stated that there is instability in the area where his fiance’s family live.  He said there are security issues and terrorism as well.  He said the area in which they live is Jabal Mohsen. The applicant said he had returned back to serving in the Lebanese Army.

36. He said that he was looking forward to coming to Australia.

37. He hopes to be able to communicate on a daily basis and he wants to have a family. He misses the sponsor. He misses her a lot. He stated that he has not declared any previous relationship, which is correct.  He asked that the Tribunal decides in their favour as they need each other.

38. The applicant said that he was certainly under stress in the situation. The sponsor is away from him.  He goes to his service which is away from the rest of the world, except for her family. That is, emotionally he feels better when he goes to see her family. 

39. The Australian Government, The Department of Foreign Affairs and Trade’s smartraveller.gov.au; indicated on 4 December 2018 the following advice levels. 

    * Lebanon overall, exercise a high degree of caution.

    * Tripoli (except the neighbourhoods of Jabal Mohsen and Bab-al-Tabbaneh and Northern Lebanon, north of a line from Tripoli to Sir Ed Dinniyeh and Laboue), reconsider your need to travel. 

    * Southern suburbs (Dahiyeh) of Beirut, including west of the airport road.  The neighbourhoods of Jabal Mohsen and Bab-al-Tabbaneh in Tripoli, do not travel.

    * North-eastern Beka’a Valley region, including the Hermel-Baalbek region, and the towns of Rayak, Arsal, El Qaa and Ras Baalbek, do not travel.

    * South of the Litani River, with the exception of the city of Tyre. Palestinian refugee camps, do not travel.

    *Areas within five kilometres of the border with Syria, do not travel.

40. The Tribunal has considered the claims immediately above, and importantly it appears that the area in which the sponsor’s family live in Jabal Mohsen, should not be travelled.

41. The sponsor was asked how important are her ties with Australia?  She responded, ‘I have been living here 6-7 years.  The ties are pretty strong.’

42. The sponsor’s sister, Ms. Jihane Habib, provided the following oral evidence to the Tribunal.

43. She stated that she has to support her sister. The applicant is a good man.  He loves the sponsor.  The sponsor wants the applicant to make a family here.  The sponsor needs to be stable. The sister, Jihane, stated that she is here to support the sponsor.

44. Jihane stated that the sponsor’s previous relationship she was just engaged and she was to get married. .  It was hard to communicate with him. The sponsor was depressed. She would say, ‘What can I do?’ Jihane supported her.

45. However, the sponsor is very happy with her present fiance.  

46. In Jihane’s typed statement she has written the following.

    It is obvious that Nader loves Julie very much.  He can’t wait to see her and be married.  they have been apart for a long time and this distance makes them more stronger as a couple. They are always talking on the phone and on video call every day.  I know for sure there is not one day where they haven’t spoken to each other.

    Julie is my baby sister and I hope they will be together soon so they can settle and start a family. They want to start a family together so much and I know they are a young, genuine couple. Of course, the main thing I want to see is my sister be happy with the person she chose to spend her life with.

47. Overall, the Tribunal finds that there are many compelling circumstances effecting the interests of the sponsor.  

48. 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 300 visa.

    DECISION

49. The Tribunal remits the application for a Prospective Marriage (Temporary) (Class TO) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 300 (Prospective Marriage) visa:

    ·cl.300. 211, 212A, 213 & 222, of Schedule 2 to the Regulations.

    Robert Wilson
    Member