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

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).
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.
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.
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.
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).
For the following reasons, the Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Issa (Migration) [2023] AATA 4629
Case: [2023] AATA 4629
Decision Date: 20 November 2023

CaseChat Overview and Summary

This matter concerned an application for a Partner (Provisional) (Class UF) visa, subclass 309. The review applicant and the visa applicant met in Lebanon in October 2019 and commenced dating. Despite travel difficulties, including those caused by the COVID-19 pandemic, they maintained their relationship and decided to marry. Their marriage was officially celebrated via video link on 8 August 2021 and registered in Lebanon on 27 August 2021. The review applicant subsequently spent periods living with the visa applicant in Lebanon. The Administrative Appeals Tribunal was required to determine whether the parties were in a genuine and continuing spousal relationship.

The primary legal issue before the Tribunal was whether the visa applicant satisfied the criteria for a subclass 309 visa, specifically concerning the existence of a genuine and continuing spousal relationship. This involved assessing whether the parties met the requirements of clause 309.211 and clause 309.221 of Schedule 2 to the Migration Regulations 1994. The Tribunal considered evidence of events both before and after the visa application date, as such evidence could logically demonstrate facts relevant to the existence of the marriage relationship at the time of application.

The Tribunal reasoned that the parties were validly married under Lebanese law, which satisfied the requirements of the Act. In assessing the other criteria for a spousal relationship under regulation 1.15A(3), the Tribunal considered the financial aspects, nature of the household, social aspects, and the nature of the parties' commitment to each other. While the Tribunal noted that the delegate had made findings on these clauses, it did not make its own findings. However, based on the evidence presented, including the parties' commitment, duration of the relationship, and periods of living together, the Tribunal concluded that the matter should be remitted for reconsideration. The Tribunal directed that the visa applicant met the criteria for clause 309.211 and clause 309.221.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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 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? 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. 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

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant satisfies cl 309.211 by meeting the requirements of subclause (2) or (3). 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. In deciding this matter, the Tribunal has also had regard to evidence of events subsequent to the date of the visa application. 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 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. 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. 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. 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. 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 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?

Decision

Reasons for decision

The Tribunal notes the delegate made a finding on these clauses. The Tribunal has not made a finding on these clauses.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 Cheryl CartwrightMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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