Issa (Migration)

[2023] AATA 4629

Issa (Migration) [2023] AATA 4629 (20 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ghadeer Issa

VISA APPLICANT:  Mr Ali Farhat

CASE NUMBER:  2308935

DIBP REFERENCE(S):  BCC2021/1840859

MEMBER:Cheryl Cartwright

DATE:20 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

·cl 309.211 of Schedule 2 to the Regulations

·cl 309.221 of Schedule 2 to the Regulations

Statement made on 20 November 2023 at 10:20am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 –parties validly married– parties have spent time living together in Lebanon – parties are in a genuine spousal relationship – have maintained a committed relationship for four years – parties represent themselves as a couple in a genuine and continuing relationship – decision under review remitted     

LEGISLATION
Migration Act 1958, ss 5F, 65, 360
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221

CASES
Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
Jayasinghe v MIMA [2006] FCA 1700
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 27 May 2023 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 24 September 2021 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. On 27 May 2023, the delegate refused to grant the visa on the basis that the visa applicant did not satisfy cls 309.211, 309.221, 309.311, 100.221 and 100.311 because the applicant had provided insufficient evidence to demonstrate that he meets the definition of ‘spouse’ as required by section 5F of the Act.

4. On 21 June 2023 the parties applied to the Tribunal for review of the decision. On 16 October 2023 and 19 October 2023, the review applicant wrote to the Tribunal requesting priority process of the review due to the outbreak of conflict in South Lebanon. On 24 October 2023 the Tribunal granted priority processing of the review.

5. Upon reviewing the submissions and further evidence provided to the Tribunal, the Tribunal considered that, based on the material before it, a hearing was not required and that the review should be decided in the review applicant’s favour pursuant to s 360(2)(a). 

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 the visa applicant satisfies cl 309.211 by meeting the requirements of subclause (2) or (3).

8. As Middleton J stated in Jayasinghe v MIMA [2006] FCA 1700 at [35]:

   Evidence of events subsequent to the visa application is relevant if it ‘tends logically to show the existence or non-existence of facts relevant to the issue to be determined’: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 160 per Deane J. The Tribunal must consider all relevant evidence, which may include evidence of events subsequent to the date of application insofar as it assists in the task of determining whether the appellant and the sponsor were in a marriage relationship at the time of the application. The question of whether particular evidence is relevant and the weight it is to be given is clearly a matter for the Tribunal.

9. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application.

10. In the circumstances of this case, the Tribunal considers that it is appropriate to make findings about cl 309.221 (a time of decision criterion in relation to this decision) as well.

    Background

11. The parties met in Lebanon in October 2019 when the review applicant, who was born in Australia, was visiting her grandfather. The visa applicant had been undertaking work on the review applicant’s grandfather’s house and he, and other workers, had been invited to lunch. The parties exchanged phone numbers and began dating during the review applicant’s two-month visit.

12. In his statement dated 17 September 2021, the visa applicant states that the parties had made a commitment to each other, and he tried to see the review applicant regularly during that 2019 visit, but it was difficult due to roadblocks and protests; however, they persevered.

13. The review applicant returned to Australia in December 2019 and had planned to visit Lebanon again in June 2020, but the COVID pandemic hit, and travel was impossible. The parties remained in touch and decided to be married, planning another visit for November 2020. The visa applicant states that COVID was very bad in Lebanon, and he had feared for the visa applicant’s safety, even if she had been permitted to leave Australia.

14. As the COVID lockdowns continued, the parties officially celebrated their marriage via video link with family and friends in both countries on 8 August 2021.

15. On 28 July 2022 the review applicant returned to Lebanon and lived with the visa applicant. She returned to Australia on 27 October 2022. She visited Lebanon again on 9 October 2023 again living with the visa applicant and, at the time of the Tribunal’s decision, she remains in Lebanon.

    Whether the parties are in a spouse or de facto relationship

• 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. A copy of the review applicant’s birth certificate and of her passport are on file.

• ‘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?

1. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. As mentioned above, due to COVID restrictions, the parties were unable to be physically together for their celebration on 8 August 2021 and have provided a translated copy of a marriage certificate from the Directorate General of Personal Status Department, Ministry of Interior, Republic of Lebanon. Religious Authority Legalisation for the certificate was provided by Sheikh Jamal Fakih. The document was registered on 27 August 2021. 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?

2. Regulation 1.15A(3) provides relevant factors for determining whether the spousal relationship exists. These factors are (a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; and (d) the nature of the persons’ commitment to each other.

3. In considering these issues, the Tribunal has had regard to all the documents on the Department’s file and the Tribunal’s file.

   The financial aspects of the relationship

4. Any joint ownership of real estate or other major assets, any joint liabilities, the extent of any pooling of financial resources, whether one person in the relationship owes any legal obligation in respect of the other and the basis of any sharing of day-to-day household expenses are relevant factors to consider when assessing the financial aspects of the relationship.

5. There is no evidence before the Tribunal that the parties jointly own real estate or other major assets, or that they have any joint liabilities. There is also no evidence that one person in the relationship owes any legal obligation in respect of the other.

6. The Tribunal notes the difficulties in establishing shared finances while living in separate countries. In an undated statement received by the Tribunal on 15 November 2023, the visa applicant states that the separation and COVID restrictions had caused financial challenges for the parties, and they had from time to time relied on friends and family for financial support.

7. In a statement dated 14 November 2023 and received by the Tribunal on 15 November 2023, the review applicant states that the parties have provided financial support to each other. She states that the visa applicant had sent money to her in Australia ‘when he has been able to’ and she has also sent money to Lebanon when the visa applicant has needed financial support.

8. The Tribunal notes that, at the time of application, the parties had provided evidence of financial transfers and gives some weight to this evidence.

9. At the time of its decision, the Tribunal gives some weight to the continuing financial support between the parties and considers this as evidence of shared responsibility for their financial resources.

   Nature of the household

10. Any joint responsibility for the care and support of children, the living arrangements of the persons and any sharing of the responsibility for housework are relevant matters to be considered when assessing the nature of the household.

11. There is no evidence before the Tribunal that the parties have any children together.

12. The Tribunal notes that the review applicant has visited Lebanon in 2019, 2022 and 2023, and during these visits the parties live together.

13. In her statement dated 14 November 2023 mentioned above, the review applicant states that when she is in Lebanon the parties share responsibility for household chores. In his undated statement mentioned above, the visa applicant states that the parties share cooking and cleaning duties and do the shopping together.

14. During their time apart the parties have remained in contact through social media and telephone and video calls.

15. In an undated statement received by the Tribunal on 15 November 2023, Rayaan Mehanna states that the ‘long-distant relationship’ has been a challenge for the parties and had tested their patience, but their ‘unwavering commitment and trust’ had kept them close. Ms Mehanna states that she had participated in some of the parties’ video calls, seeing the ‘great warmth’ shared by the parties.

16. The Tribunal notes that, at the time of application, the parties had spent only a few months sharing a home in Lebanon.

17. At the time of this decision, the Tribunal gives great weight to the evidence that the parties have spent time living together in Lebanon when the review applicant has visited and considers this to be evidence of a shared household arrangement.

    Social aspects of the relationship

18. Whether the persons represent themselves to other people as being married to each other, the opinion of the persons’ friends and acquaintances about the nature of the relationship and any basis on which the persons plan and undertake joint social activities are relevant matters to be considered in determining the social aspects of the relationship.

19. The parties provided numerous photographs, including screenshots of shared family discussions, as well as the parties in various locations in Lebanon and in Turkey on a holiday. In her statement dated 14 November 2023 mentioned above, the review applicant states that, as a child, she had wished to visit Turkey and the visa applicant had surprised her by organising a holiday there.

20. In his undated statement mentioned above, the visa applicant states that, during the review applicant’s visits to Lebanon, they would socialise outside the home ‘during safer times’. He states that recent plans for travel to Egypt and Turkey had been cancelled because of conflict in neighbouring countries.

21. In her undated statement mentioned above, Ms Mehanna states that the parties’ relationship has survived the geographical separation and time zone differences.

22. In an undated statement received by the Tribunal on 15 November 2023, the review applicant’s sister Fatima Issa states that she is a witness to the ‘ongoing and genuine relationship’ between the parties.

23. In an undated statement received by the Tribunal on 15 November 2023, Mariam Cheikh Ali states that the difficulty of maintaining their relationship through the difficulties ‘across miles’ had tested the parties’ patience but had strengthened their bond.

24. In an undated statement received by the Tribunal on 15 November 2023, an aunt of the visa applicant Asya Farhat states that, when the visa applicant introduced the review applicant to his family Ms Farhat could see the ‘connection’ the parties shared. She had visited the parties in Lebanon in October 2023 and witnessed their life as a married couple.

25. The Tribunal notes that, at the time of application, the parties provided receipts for internet/electricity bills under joint names and the parties had lived together for a short time in 2019 and gives this evidence some weight.

26. The Tribunal notes that, at the time of its decision, the parties have shared a home in Lebanon in 2019, 2022 and 2023 and have socialised with friends and family when it is safe to do so. The Tribunal also notes the statements from friends and family and is satisfied that, in the opinion of friends and acquaintances, the parties are in a genuine spousal relationship.

    The nature of the persons’ commitment to each other

27. The duration of the relationship, the length of time during which the persons have lived together, the degree of companionship and emotional support that the persons draw from each other, and whether the persons see their relationship as long-term are all aspects to be considered in determining the nature of the persons’ commitment to each other.

28. In her statement dated 14 November 2023, mentioned above, the review applicant states that the visa applicant has been a ‘pillar of strength’ during her current visit to Lebanon as she listens to the noise of war planes overhead and explosions. She states that the visa applicant is able to calm her nerves and helps her to feel secure.

29. In his undated statement mentioned above, the visa applicant states that the review applicant wants to have children but this has not been possible while they are in Lebanon, with the lack of physical security of being near a war zone.

30. In her undated statement mentioned above, the review applicant’s sister states that she and her sister are in touch most days and the review applicant has told her about the visa applicant’s emotional and financial support during her visit. She states that the long-distance relationship had been a difficult experience but it had ‘proved their love for one another’.

31. In her undated statement mentioned above, Rayaan Mehanna states that the parties’ relationship is ‘deeply rooted in mutual respect and admiration’. And in her undated statement, Ms Ali states that she has been an observer of the relationship from the beginning and has seen ‘enduring love and shared values’.

32. The Tribunal notes the limited evidence of the parties’ commitment to each other that was provided at the time of application and gives little weight to this limited evidence.

33. At the time of this decision, the parties have been married for two years and have maintained a committed relationship for four years. The Tribunal notes that the review applicant has visited Lebanon and lived with the visa applicant in 2019, 2022 and 2023 and would have done so more often if not for COVID lockdowns. The Tribunal gives great weight to the evidence provided to it by the parties and the friends and family in relation to the parties’ commitment to each other.

    Conclusion

34. As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act.

35. After considering all the evidence before it and for the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, both at the time of application on 24 September 2021 and at the time of this decision, the visa applicant and the review applicant:

    ·had and have a mutual commitment to a shared life as wife and husband to the exclusion of all others, as required by s 5F(2)(b) of the Act;

    ·had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and

    ·lived and live together as much as possible as required by s 5F(2)(d)(i) of the Act.

36. On the basis of the above the Tribunal is satisfied that the requirements of s 5F(2) are met at the time of application and at the time of this decision.

37. Given these findings, the Tribunal is satisfied that, at the time the visa application was made and at the time of this decision, the parties were and are in a spousal relationship. Therefore, the applicant meets cl 309.211 and 309.221.

38. 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 309 visa.

    Clause 309.311

39. The Tribunal notes that the delegate also made a finding on cl 309.311 which states:

    The applicant is a member of the family unit of, and made a combined application with, a person who satisfies the primary criteria in Subdivision 309.21.

40. The Tribunal notes that visa applicant has made an individual application for a partner visa (subclass 309) and is not a member of a family unit. The Tribunal makes no finding in this regard.

    Clauses 100.221 and 100.311

41. The Tribunal notes the delegate made a finding on these clauses. The Tribunal has not made a finding on these clauses.

    DECISION

42. The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:

    ·cl 309.211 of Schedule 2 to the Regulations

    ·cl 309.221 of Schedule 2 to the Regulations

    Cheryl Cartwright
    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).