Imseeh (Migration)

[2022] AATA 2245

Imseeh (Migration) [2022] AATA 2245 (1 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ramzi Michel Nu'man Imseeh

CASE NUMBER:  2109270

HOME AFFAIRS REFERENCE(S):          CLF2013/97704

MEMBER:Kira Raif

DATE:1 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 01 July 2022 at 9:16am

CATCHWORDS
MIGRATION – Partner (Residence) (Class BS) – Subclass 801 (Spouse) – genuine spousal relationship – validly married – limited and inconsistent evidence of financial, household and social aspects of relationship and nature of commitment – length of relationship and statements from family members and friends – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 801.221(2)(c)

CASE
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 Immigration and Border Protection on 19 January 2017 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a national of Jordan, born in January 1973. He claims to have first met the sponsor in June 2010, the couple were engaged a month later and married in March 2013. The applicant entered Australia in January 2013 as a holder of a Prospective Marriage visa.  He applied for the visa on 3 May 2013 on the basis of his relationship with the sponsor and was granted the temporary Partner visa in May 2013.

3. The delegate refused to grant the permanent visa on the basis that the applicant did not satisfy cl 801.221 because the delegate was not satisfied the applicant was the spouse of the sponsor. The applicant sought review of the delegate’s decision. In August 2018 the Tribunal, differently constituted, affirmed the decision under review. The applicant sought judicial review and the matter has now been remitted to the Tribunal for reconsideration.

4. The applicant appeared before the Tribunal on 14 June 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and a friend of the family. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. At the time the application was made, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).

6. Relevantly to this matter, cl 801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

7. ‘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 sponsor’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) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided with his application evidence that he and the sponsor registered marriage in March 2013. There is nothing to suggest the marriage is not valid. The Tribunal is satisfied that 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?

9. The Tribunal has had regard to the evidence provided by the applicant with the primary application, as well as additional evidence that has been given to the Tribunal throughout the review. The Tribunal has also had regard to the parties’ oral evidence.

10. The Tribunal acknowledges that there is a large volume of documentary evidence that was submitted with the application and to the first and the present Tribunals. Much of it points to the existence of a genuine spousal relationship but in the Tribunal’s view such evidence is of somewhat limited value. This is because the documentary evidence may be available whether or not the parties are in a genuine spousal relationship. For example, correspondence may be sent to the same address whether or not the parties have established a joint household and live together and those sending letters, in particular organisations, are unlikely to check or be familiar with the nature of the household. Joint names may appear on receipts whether or not both parties contribute to the purchase. Other evidence may be of greater value, such as statements from third parties and, in this case, health professionals and the Tribunal has given such evidence due regard.

11. The Tribunal has considered the financial aspects of the relationship. The applicant and sponsor provided evidence of operating a joint account which shows regular transactions. However, both told the Tribunal that the sponsor does not contribute to the joint account as her employment income is deposited into her own separate account. Neither the applicant nor the sponsor had been able to offer a meaningful explanation as to why the joint account was opened if only one of them makes any contribution to it and the Tribunal has formed the view that it was opened solely for the purpose of establishing evidence in support of the visa application. In the particular circumstances of this case, the Tribunal does not accept that the existence of the joint account represents the parties’ willingness to share their finances.

12. The applicant displayed minimal knowledge about the sponsor’s finances. He told the Tribunal that he did not know what his wife’s income is as “he is not interested”. The applicant told the Tribunal that they have a joint account but only his income is deposited in that account. The applicant told the Tribunal that they give money to each other from different accounts but he could not state what savings his wife had in her account. The applicant told the Tribunal that his wife is the beneficiary on his superannuation but he did not know if there was a beneficiary on his wife’s superannuation account. He also could not state what his wife’s Centrerlink payments were in the past and while he said that his wife did inform Centrelink about the marriage, he had no knowledge about her income or how it had changed as a result.

13. The Tribunal is prepared to accept that the applicant and sponsor both contribute to some living expenses, however, there is minimal evidence of sharing of their resources and very limited knowledge about each other’s financial circumstances. There is no evidence of joint ownership of asses and of joint liabilities. There is no evidence of any legal obligations owed by one party to the other party. The Tribunal accepts there may be some sharing of day to day household expenses but, generally, the Tribunal is not satisfied on the evidence before it that the financial aspects of the relationship are consistent with the existence of a genuine spousal relationship.

14. The Tribunal has considered the nature of the household. There is written evidence of cohabitation, including in the form of phone plans and various correspondence addressed to the same address. The parties gave some consistent evidence about their day to day living arrangements and other evidence on the issue was not consistent. For example,

    a.The applicant told the Tribunal his wife has been working at her present job for four years at the present site and about eight to nine years altogether, although working at a different site previously. The sponsor told the Tribunal that she has worked for the company for four years and prior to that she was a housewife.

    b.The applicant told the Tribunal that in the past week he worked five days. The sponsor said that in the past week he worked four days.

    c.The applicant told the Tribunal that on Mondays and Tuesdays his wife drives him to work and on Wednesday his mother in law drives him to work. The sponsor said that she drives him to work on Mondays, Tuesdays and Wednesdays and on the days she works, she drops him off at the station. When that inconsistency was pointed out, the sponsor said that sometimes her mother drivers him.

    d.The applicant told the Tribunal their regular shopping day is on Tuesday while the sponsor suggested it was Thursday. 

15. In the Tribunal’s view, if the applicant and sponsor did establish a joint household and had been living together in a joint household for over eight years, as claimed, they would be able to provide more consistent evidence about such aspects of daily living. These discrepancies, while not necessarily significant and certainly not determinative, do raise concerns about whether the applicant and the sponsor have established a joint household (even if they live under the same roof).

16. The applicant gave some examples of his contribution to the housework – such as helping his mother in law to take out the rubbish and in the garden and going shopping with the sponsor or for his mother in law. The Tribunal is prepared to accept there is some degree of sharing of housework.

17. The Tribunal has significant concerns about the applicant’s relationship with his step-son. The applicant repeatedly told the Tribunal that he has a close relationship with the boy, loves him and treats him better than the boy’s father. However, the applicant’s knowledge about his step-son was minimal at best. The applicant could not name the school the child attends or the subjects he is undertaking. He told the Tribunal his step-son plays computer games which he sometimes buys for him but did not what computer games he likes or plays. The applicant did not know what his step-son intended to do upon completing high school (in less than a year). When the Tribunal asked the applicant what they talk about, the applicant said that they say ‘hello and how was your day’ and he tells his step-son to study, which does not seem to comprise a meaningful conversation or be consistent with the applicant undertaking a meaningful parental responsibility as he claims. The applicant told the Tribunal that that he had not attended parent – teacher nights for over five years (the sponsor said that he had never attended). The applicant told the Tribunal his step-son spends time talking to his friends but he could not name any of his friends. The applicant told the Tribunal that his step-son attends gym (he did not know if minors are allowed to attend gym without a parent) and could not state whether he was involved in any other sport. The applicant thought the child attends gym with an uncle while the sponsor told the Tribunal that he attends gym on his own and has never attended with an uncle.

18. The applicant told the Tribunal that his step-son has only limited Arabic, which affects their communication, but in the Tribunal’s view, if the applicant did have an intention of forming a close relationship with the child, he could have found the means of communicating with him, for example with the help of the child’s mother or other relatives living in the same household. On the evidence before it, the Tribunal is not satisfied that the applicant plays a parental role in relation to his step-son, nor that he has a close relationship with him. The Tribunal is not satisfied the applicant and sponsor have any joint responsibilities for care and support of children.

19. The Tribunal has considered the social aspects of the relationship. There are multiple statements from third parties about the relationship and one of the family friends attended the hearing to give oral evidence. The Tribunal gives weight to statements from family members and health professionals in support of the relationship and accepts that those who presented statements believe the relationship to be a genuine one and also refer to the emotional and other support the parties provide to each other. The Tribunal accepts that the applicant and sponsor plan and undertake joint social activities and represent themselves to others as being in a spousal relationship. The Tribunal accepts that the social aspects of the relationship point to its genuine nature.

20. The relationship has now been in existence for approximately ten years and the Tribunal acknowledges it is a lengthy period. There is evidence that the applicant accompanied the sponsor to medical appointments and statements from health professionals about the emotional support he provided to the sponsor. However, in oral evidence, the applicant gave very limited evidence about the comfort and emotional support he and the sponsor provide to each other. Despite the statements from third parties, the Tribunal has significant concerns whether companionship and emotional support are shared between the applicant and sponsor.

21. The Tribunal has considered all the evidence before it, including documentary evidence provided with the primary application and throughout the review, and the oral evidence of the parties to the two Tribunals. The Tribunal acknowledges that there is ample documentary evidence that points to the existence of a genuine relationship between the applicant and the sponsor. In particular, the Tribunal gives significant weight to the evidence from third parties (including written statements from family and friends and the oral evidence from Mr Hanania). There are statements from health professionals about the support the applicant has provided to the sponsor). There is a significant amount of evidence concerning the social aspects of the relationship and the Tribunal accepts that others believe the relationship to be a genuine and committed one. The Tribunal also places considerable weight to the length of the relationship and the fact that it appears to be recognised by close family members.

22. Against these considerations, the Tribunal is mindful of the inconsistencies in the parties’ oral evidence about aspects of their relationship. In the Tribunal’s view, if the applicant and sponsor did establish a joint household and lived together for about ten years as claimed, they would have better knowledge about each other than what was displayed during the hearing (and the Tribunal is also mindful of the inconsistencies in their oral evidence to the first Tribunal). The applicant repeatedly explained to the Tribunals that the inconsistencies arise from his lack of education and poor English and his and his wife’s forgetfulness. The Tribunal does not accept that evidence because many of the questions posed by the Tribunal were about the family’s simple daily tasks (such as how he gets to work or what his son’s interests are) and the Tribunal does not consider that any particular level of education or English proficiency is required to be able to answer such questions. As for the sponsor’s forgetfulness, the Tribunal is not prepared to accept that claim without probative medical evidence.

23. In his post-hearing submission to the Tribunal of 22 June 2022 the applicant also refers to his wife’s history of depression and anxiety, stating that as a result, she gave wrong answers but while there is ample evidence before the Tribunal concerning the sponsor’s health (which the Tribunal accepts), it does not establish that the sponsor’s health issues had affected her memory or capacity to recall or give evidence.

24. The Tribunal is mindful that the same concerns arose after the first Tribunal hearing and the parties were put on notice that inconsistences in their evidence may be relevant to the Tribunal’s determination and may lead the Tribunal to find that  a spousal relationship does not exist. If there are any health or other issues affecting their recall, the parties had an opportunity to provide such evidence to the Tribunal. They have not done so.  (While the applicant had provided a number of medical reports relating to the sponsor to the first and present Tribunal, these do not address her memory or capacity to given evidence) Providing evidence concerning the sponsor’s diagnoses is not on its own helpful to explain that her evidence or recall had been affected. In such circumstances, the Tribunal is not prepared to accept the applicant’s explanation that the inconsistencies in evidence were caused by his wife’s health issues, nor that these had impacted her ability to recall.

25. The Tribunal acknowledges that some aspects of the relationship suggest it is a genuine spousal one while the Tribunal’s concerns in relation to other aspects are noted above. Overall, and having due regard to the totality of evidence before it, the applicant has not satisfied the Tribunal that at the time of this decision, he and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is not satisfied the applicant is the spouse of the sponsor. The Tribunal finds that the requirements of s 5F(2) are not met at the time of this decision. Therefore the applicant does not meet cl 801.221(2)(c).

26. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl 801.221(2A), (3), (4), (5) or (6). The Tribunal finds that cl. 801.221 is not met.

    Conclusion

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

    DECISION

28. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Kira Raif
    Senior Member