Hamadi (Migration)

[2024] AATA 578

Hamadi (Migration) [2024] AATA 578 (8 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Samia Hamadi

CASE NUMBER:  2202468

HOME AFFAIRS REFERENCE:               BCC2018/2625122

MEMBER:Maxina Martellotta

DATE:8 March 2024

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

·cl 100.221(2) of Schedule 2 to the Regulations

Statement made on 08 March 2024 at 7:55am

CATCHWORDS
MIGRATION – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – genuine spousal relationship – marriage registered with relevant authorities in Lebanon – known each other for nearly eight years – do not jointly own any major assets or operate a joint bank account – parents of two children and expecting their third – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cl 100.221

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 on 14 February 2022 to refuse to grant the visa applicant a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 13 July 2018 on the basis of her relationship with her sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner).

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 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.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl 100.221(2) because they were not satisfied that at the time of decision the visa applicant was still the spouse of the sponsor. The record of decision notes that the applicant did not provide requested updated information about the ongoing existence of the relationship and in the absence of that information concluded that they were not satisfied that the criteria was satisfied at the date of decision.

5. The applicant appeared before the Tribunal on 5 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor. Other evidence considered by the Tribunal included materials provided by the applicants to the Tribunal and the Department file. The applicant provided the Tribunal a copy of the delegate’s decision.

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 is whether at the time of decision the applicant is in a spousal relationship with the sponsor.

   Whether the parties are in a spouse or de facto relationship

8. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl 100.221(2) and (2A) which require, among other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen.

9. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.

   Background

10. The applicant was born in Lebanon in 1999. She was granted a Subclass 309 visa on 30 September 2019. The applicant arrived in Australia in March 2020. The sponsor was born in Australia and 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 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?

12. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. According to the evidence provided at hearing, the applicant and sponsor entered into a contract of marriage on 23 April 2016 pursuant to the religious requirements of their Muslim Shiite faith.  They celebrated the marriage in April 2017 and registered the marriage with relevant authorities in Lebanon.  A translation of a certified copy of a marriage certificate issued by the Lebanese Republic Ministry of Interior and Municipalities – General Director of Civil Status was included on the Department file. It is dated 25 June 2018 and includes the authenticity of the religious authority and references the marriage contract.

13. In determining whether a marriage is valid for purposes of the Act, consideration is to be given to the Marriage Act 1961 (Cth) (the Marriage Act). The Marriage Act defines marriage as the solemnised union of two people, to the exclusion of all others, voluntarily entered into for life.[1] The Marriage Act also provides for recognition of foreign marriages. In summary foreign marriages recognised under the law of the country in which they are solemnised will be recognised in Australia.[2]

    ^[1] Marriage Act ss 5, 23A, 23B, 40, 41, 48, 73.

    [2] Marriage Act Part VA.

14. The Tribunal is satisfied that on the presented 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?

15. The Tribunal has considered all of the information and evidence before it, including documents and information contained in the Department file, oral evidence provided by the applicant and sponsor at the hearing and responses and documents submitted to the Tribunal prior to and following the hearing. Having carefully considered all of the material before it and all the circumstances of the relationship, on balance, the Tribunal is satisfied, for the following reasons that the applicant and sponsor live together; are in a genuine and continuing relationship; and have a mutual commitment to a shared life as a married couple to the exclusion of all others.

16. The applicant and sponsor provided consistent evidence about the following factors.

    a)They met each other at the home of the sponsor’s cousin when the sponsor and his family were visiting Lebanon in 2016.

    b)Following the initial meeting they continued to communicate with each other, and the sponsor proposed marriage. In April 2016 they entered a marriage contract in the presence of family, witnesses and a religious official.

    c)The sponsor returned to Australia, and they maintained contact which included the sponsor returning to Lebanon on a regular basis. The applicant and sponsor celebrated their wedding in April 2017. This was an event held in Lebanon attended by family and friends including members of the sponsor’s family who attended from Australia.

    d)The marriage was registered in June 2018. The sponsor travelled regularly back to Lebanon to visit and spend time with the applicant. The Tribunal notes that this evidence is consistent with the sponsor’s movement record.

    e)The visa application was lodged in July 2018 and the Subclass 309 visa was granted on 30 September 2019.

    f)The applicant arrived in Australia in March 2020 just before  border and travel restrictions were imposed due to the COVID-19 pandemic.

    g)The applicant initially resided with the sponsor at the home of his parents.

    h)The sponsor is a builder and was completing construction of a residential development in Balga. The applicant and sponsor moved to one of those properties after about three months of living with the sponsor’s parents.

    i)They resided in the Balga property until a decision was made to sell that property. The applicant explained that their first child was born whilst residing in that property (in February 2021) and they needed a bigger home. The sponsor said that he and his business partner decided that it was a good time to sell and to invest in another development.

    j)The applicant and sponsor moved to a rental property in Dianella and at the time of decision they reside in that property. Their second child was born in May 2022. They have plans to either buy or build a family home at some point.

    k)The applicant is pregnant with their third child who is due in June 2024.

    l)The applicant and sponsor do not jointly own any major assets or service any joint liabilities.

    m)The sponsor is self employed as a builder and provides the household income. The applicant does not receive any family assistance payments. They do not operate a joint bank account.

    n)The sponsor meets all the household costs and expenses. The applicant maintains the home and cares for their children. She stated that the sponsor meets all the expenses and provides her with money for any expenses that she might have and he regularly transfers funds into her bank account.

    o)They are the parents of two young children. The applicant said that whilst she has the care of the children when the sponsor is working, they jointly share responsibility for the care of their children and the sponsor is actively involved in their care before and after work and over weekends.

    p)The applicant described that they have arranged their household such that she is the person at home taking care of the children and general household tasks, however the sponsor also contributes to various household tasks. The sponsor said that his focus is mainly on the garden and general maintenance but he and the applicant also share tasks particularly given that they are the parents of young children and expecting a third child in June 2024.

    q)The applicant described meeting members of the sponsor’s family in Lebanon and in Australia. She described that they regularly visit the sponsor’s parents, and they also regularly socialise with other young couples with children. This was confirmed in the sponsor’s evidence. They recently travelled to Malaysia for a family holiday in the company of three other couples and their children. The sponsor stated that they may also have a family holiday in Sydney later this year after Ramadan.

    r)The applicant stated that the sponsor provides her with a supportive relationship, and she is happy living in Australia.  She has been able to return to Lebanon to visit her family and introduce her children.  The sponsor stated that he has supported the applicant particularly during her pregnancies and that he plans to take time off work after the birth of their third child.

    s)The sponsor explained that he does not know why he missed the email requests from the Department requesting updated information to confirm their relationship. He said it has been very stressful and if the visa is refused it would be detrimental given that he and the applicant are the parents of young children and expecting their third child in June 2024.

17. The oral evidence of the applicant and sponsor was corroborated by various documents and materials including the following:

    a)Birth certificate of their eldest child which identifies the applicant and sponsor as her parents.

    b)The passport of their second child.

    c)Medical report and imaging confirming the applicant is pregnant and expecting a child in June 2024.

    d)Photographs depicting the applicant and sponsor with their children and also in the company of friends.

    e)Evidence of their holiday to Malaysia including tickets and photographs.

    f)Correspondence addressed to the applicant at the rental property in Dianella.

    g)Credit transfers from the sponsor account to the applicant.

    h)Lease agreement for the rental property recording that it is occupied by two adults and two children.

    i)Statutory declarations provided by three friends stating that they have met the applicant and know her as the sponsor’s wife. Confirming that they regularly socialise with the applicant, sponsor and their children including a recent holiday to Malaysia and otherwise declaring that from their observation and knowledge the applicant and sponsor are in a genuine spousal relationship.

    j)Applicant and sponsor’s movement records.

18. In the Tribunal’s assessment, the applicant and sponsor were credible witnesses. Their evidence was consistent and corroborated by materials provided to the Department and the Tribunal.

19. The Tribunal makes the following findings of fact:

    a)The applicant and sponsor are married and have known each other since first meeting in 2016. At the time of decision, they have known each other for nearly eight years.

    b)The applicant was granted a Subclass 309 visa on 30 September 2019.

    c)The applicant and sponsor have lived together since the applicant arrived in Australia in 2020.

    d)They do not jointly own any major assets and do not operate a joint bank account.

    e)The sponsor works in his own business and financially meets the costs of the household which includes providing financial resources to the applicant.

    f)They are the parents of two children (born in February 2021 and May 2022) and are expecting their third child in June 2024. They share responsibility for the care of their children and they also share household tasks.

    g)They represent themselves to the world at large as spouses. They are recognised and acknowledged as being in a genuine and committed relationship.

    h)The applicant and sponsor undertake and plan social activities as the parents of young children. They have travelled on a family holiday and socialise and spend time with family and friends.

    i)The applicant and sponsor provide each other with emotional support and companionship.

20. Given these findings the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of this decision. The applicant meets cl 100.221(2) (a) and (b). As more than two years has passed since the application was made, the applicant also meets cl 100.221(2)(c).

21. 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 100 visa.

    DECISION

22. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

    ·cl 100.221(2) of Schedule 2 to the Regulations

    Maxina Martellotta
    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).