Jacob (Migration)

[2024] AATA 3058

Jacob (Migration) [2024] AATA 3058 (21 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mark Jacob

VISA APPLICANT:  Mrs Doaa Mirawi Abdulzahra Al-Shamarti

REPRESENTATIVE:  Mr Abu Siddque

CASE NUMBER:  2013937

DIBP REFERENCE(S):  BCC2019/1842417

MEMBER:Edward Howard

DATE:21 August 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 21 August 2024 at 3:29pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – Divorce Order – genuine de facto relationship – financial aspects – nature of the household – social aspects – representations to government authorities – nature of the commitment – decision under review affirmed

LEGISLATION
Marriage Act 1961 (Cth), s 23B
Migration Act 1958 (Cth), ss 5CB, 5F,65
Migration Regulations 1994 (Cth), rr 1.09A, 1.15A, 2.03A; Schedule 2, cls 309.211, 309.221

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 6 July 2020 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 13 April 2019 on the basis of her relationship with her 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. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211(2) of Schedule 2 to the Regulations.

4. On 14 September 2020, the review applicant lodged an application for review with the Administrative Appeals Tribunal (the Tribunal).

5. In the Partner Visa Application, lodged on 13 April 2019, when requested to give details of the financial aspects of the relationship and the nature of the household, the parties referred to, amongst other things, joint loan agreements for real estate and cars, joint ownership of residential property, joint residential leases and joint utilities accounts.

6. In the Partner Visa Application, no particulars of the matters referred to above and no evidence or submissions in relation to those items were given.

7. On 27 May 2024, the Tribunal forwarded correspondence to the review applicant pursuant to s.359(2) of the Act, inviting the review applicant to provide evidence and information concerning matters referred to in the Partner Visa Application of 13 April 2019 as detailed in paragraph 5 above.

8. The correspondence from the Tribunal informed the review applicant that the information should be provided by no later than 10 June 2024. The review applicant was further informed that if they were unable to provide that information by 10 June 2024, a request for an extension of time to provide information could be made, with such request required to be made prior to 10 June 2024.

9. The correspondence from the Tribunal also informed the review applicant that if the information was not received within the period allowed (or as extended), the Tribunal may make a decision without taking any further action to obtain information. The review applicant was also informed that he will lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The review applicant failed to provide the information requested by 10 June 2024. The Tribunal notes that no such information has been provided as at the date of this decision. In the circumstances, the Tribunal proceeds to a decision on the papers.

11. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    ISSUES AND LAW

12. There is a two-stage process for offshore Partner visas. A visa applicant must first hold a provisional visa, enabling them to remain in Australia on a temporary basis, prior to the grant of a permanent visa. The grant of a permanent visa would generally depend on whether the relationship has continued for a period of at least two years. In this matter, the Tribunal is considering the first, temporary stage.

13. Where the Tribunal is considering a criterion that requires the definition of spouse or de facto partner to be met at the time of the visa application, the information supplied in relation to the reg 1.15A(3) matters may relate to circumstances after the time of application. In forming a view of the relationship at the time of application, the Tribunal must consider all relevant evidence, which may include evidence of events after the date of application insofar as it assists in the task of determining whether the visa applicant and the review applicant were in a partner relationship at the time of the application. Evidence of events after 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.[1]

    [1] Ally v MIAC [2008] FCAFC 49 at [32]–[35]; Jayasinghe v MIMA [2006] FCA 1700 at [35], citing MIEA v Poche (1980) 4 ALD 139 at [24] per Deane J which held that evidence of subsequent events may be taken into account if it ‘tends to logically show the existence or non-existence of’ the relationship at that particular time; and see also Bretag v IRT [1991] FCA 582 at [13]–[15].

14. The issue in the present case is whether at the time of the visa application and the time of this decision, the parties satisfy the criteria under cl.309.211 and cl.309.221.

    Whether the parties are in a spouse or de facto relationship

15. Clauses 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the review applicant who is an Australian citizen.

16. ‘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?

17. On the evidence, the parties were married in Iraq on 14 May 2018 and provided an Iraqi marriage certificate. However, the Tribunal received a Divorce Order of the Federal Circuit Court of Australia, confirming the divorce of the review applicant’s marriage to his previous wife, dated 21 March 2019.

18. To determine whether a marriage is valid for the purpose of the Act, consideration must be given to the Marriage Act 1961 (Cth) (the Marriage Act). The Marriage Act defines marriage as a union of two people (of any gender) to the exclusion of all others, voluntarily entered into for life. The Marriage Act requires marriages to be solemnised, and has other requirements for their validity depending on whether they were solemnised under Australian or foreign law.

19. Part VA of the Marriage Act provides for the recognition of foreign marriages. Foreign marriages that are recognised under the law of the country in which they are solemnised will be recognised in Australia as valid, subject to certain exclusions. One of those exclusions is that:

    “either of the parties was married to someone else and that other marriage was recognised in Australia as a valid”.

20. Under the Marriage Act, a person who is a party to a marriage, must not be lawfully married to someone else. If someone enters into a marriage while still lawfully married to another person, the new marriage will either be considered void or not be recognised in Australia is valid (per s.23(1)(a),s.23B(1)(a), Marriage Act).

21. The evidence before the Tribunal, is that at the time of the marriage of the parties in Iraq, the review applicant was still married to his wife in Australia. Hence, based on this evidence, the Tribunal finds that the marriage of the review applicant to the visa applicant in Iraq in 2018 is void in Australia (per s.23B(1)(a), Marriage Act).

22. As the parties are not in a married relationship, they cannot meet the definition of ‘spouse’ under section 5F of the Act and therefore are required to satisfy the definition of ‘de facto partner’ as defined in section 5CB of the Act.

23. Section 5CB of the Act provides that a person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).

24. In forming an opinion whether they are in a de facto relationship consideration must be given 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 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

25. Persons claiming to be in a de facto relationship for a partner visa must also meet the additional criteria in reg 2.03A. Both members of the couple must be at least 18 years old: reg 2.03A(2). In this case, at the time of application, the review applicant and the sponsor were at least 18 years old.

26. The review applicant must have been in the de facto relationship for at least the 12 month period ending immediately before the date of the application: reg 2.03A(3). This requirement will not apply in limited circumstances, such as: where the de facto relationship has been registered under a relevant State or Territory law (for applications made on or after 9 November 2009); where the review applicant can establish compelling and compassionate circumstances for the grant of the visa; or in certain circumstances where the sponsor held, holds or is applying for a permanent humanitarian visa.

27. For the reasons set out below, the Tribunal is not satisfied that the parties satisfy Reg 2.03A(3) and hence are unable to meet the additional criteria prescribed in reg 2.03A.

    Are the other requirements for a partner relationship met?

    Financial aspects of the relationship – including joint ownership of assets; joint liabilities; extent of pooling of financial resources; any legal obligations owed to the other party; any sharing of day-to-day household expenses.

28. The review applicant and visa applicant claim to have first met in person whilst the review applicant was in Iraq in 2014.  The parties claim that they maintained contact after the review applicant returned to Australia. The review applicant return to Iraq in April 2018 and the parties were married there on 14 May 2018. The review applicant has returned to Iraq on four occasions since that time.

29. The parties provided a marriage certificate issued in Iraq on the date of their marriage, 14 May 2018, confirming that they are legally married in that country. However, the Tribunal received the Divorce Order of the Federal Circuit Court of Australia, confirming the divorce of the review applicant’s marriage to his previous wife, dated 21 March 2019 . Therefore at the time of the marriage of the parties in Iraq, the review applicant was still married to his wife in Australia. Hence, the marriage of the review applicant to the visa applicant in Iraq was void under Australian law (per s.23B(1)(a), Marriage Act).

30. The parties provided a letter stating that a total of USD$3,693 was forwarded by the review applicant to the visa applicant between March 2018 and May 2019. However, the letter does not refer to, nor disclose, any receipts of transfer. The Tribunal gives little weight to this evidence.

31. The parties have not provided any evidence relating to any assets or liabilities they jointly hold, nor any evidence of their attempts to pool financial resources or to share their household expenses during the times that they claim to have been living together in Iraq.

32. The Tribunal finds on the evidence that the parties do not have joint ownership of any real estate or other major assets, nor do they have any liabilities. There is no evidence that the parties pool their financial resources or jointly contribute to the expenses. The Tribunal notes that the parties live in different countries, however the Tribunal is not satisfied that the financial arrangements are consistent with the financial situation of a committed and genuine partner relationship. The Tribunal places limited weight on the financial aspects of the relationship.

    Nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.

33. The parties have lived in different countries since their marriage in May 2018. Following their marriage, the review applicant returned to Australia approximately two weeks later. Since May 2018, the review applicant has travelled to Iraq on four further occasions.

34. The parties have not provided any evidence regarding their household and living arrangements which the Tribunal would consider consistent with that of a de facto couple in a genuine partner relationship.

35. The review applicant has previously stated that he rented a house in Iraq when he travelled to live with the visa applicant, but did not know the name of the lessors. There have been no tenancy or rental agreements provided or statements or statutory declarations relating to their residential tenancy of a house in Iraq.

36. The parties provided a birth certificate for their child whom they claim was born in Iraq on 21 September 2022 together with a translation of that document dated 1 December 2023.

37. Having carefully considered all the evidence, the Tribunal is of the view there is no persuasive evidence the parties lived together as a de facto couple, or that they had living arrangements consistent with that of a genuine and committed partner relationship. The Tribunal places limited weight on the household aspects.

    Social aspects of the relationship – including whether parties represent themselves to other people as being married to each other; the opinion of friends and acquaintances about the nature of the relationship; and any basis on which the persons plan and undertake joint social activities.

38. The parties provided photographic evidence of themselves alone together and photographs of the child they claim is of their relationship. However, there are no photographs of the parties holding the child, only of the child itself. There is only one photograph with another person, where the review applicant is in the company of another male person. There are no photographs of the parties together with groups of family or friends, which would be expected when, according to the Personal particulars for assessment including character assessment form (Form 80) completed by the visa applicant, her mother and five siblings are all resident in Iraq.

39. The parties have provided a Form 888 Statutory Declaration from Mr Nashwan Al Sarafi, who claims to have known the review applicant since 2008 when they met in the workplace. He states that he is aware that the parties contact each other by phone call regularly and further states that both the review applicant and the visa applicant call him and talk to him about the relationship.

40. Having carefully considered the matter, the Tribunal is not satisfied that the evidence shows that the parties represented themselves to other people as being in a partner relationship and that they have undertaken joint social activities. The Tribunal places limited weight on the social aspects.

    Nature of persons' commitment to each other – including duration of the relationship; the length of time they have lived together; degree of companionship and emotional support they draw from each other; and whether they see the relationship as long-term.

41. The review applicant and visa applicant first met in person whilst the review applicant was in Iraq in 2014.  The parties claim that they maintained contact after the review applicant returned to Australia. The review applicant return to Iraq in April 2018 and the parties were married there on 14 May 2018. The review applicant has returned to Iraq on four occasions since that time.

42. The parties provided a marriage certificate issued in Iraq on the date of their marriage, 14 May 2018, confirming that they are legally married in that country. However, the Tribunal received a Divorce Order of the Federal Circuit Court of Australia dated 21 March 2019, confirming the divorce of the review applicant’s marriage to his previous wife. Hence, based on this evidence, the Tribunal finds that the marriage of the review applicant to the visa applicant in Iraq in 2018 is void in Australia (per s.23B(1)(a), Marriage Act).

43. There is extremely limited evidence before the Tribunal of any financial relationship between the parties and the Tribunal is not satisfied that the financial arrangements are consistent with the financial situation of a committed and genuine partner relationship.

44. There is extremely limited evidence as to the nature of the household and living arrangements whilst the review applicant was in Iraq consistent with that of a genuine and committed partner relationship. There is no persuasive evidence that they shared the household of a de facto couple or of the living arrangements of parties in a genuine partner relationship.

45. The Tribunal is not satisfied that the evidence shows that the parties represented themselves to other people as being in a de facto relationship and that they have undertaken joint social activities.

46. Having carefully considered all the evidence provided, the Tribunal is not satisfied that the parties: are in a genuine and continuing relationship; show a strong commitment to each other; provide significant emotional support to each other; or see the relationship as long-term. The Tribunal places limited weight on the nature of the parties’ commitment to each other.

    Overall Conclusions

47. The Tribunal has carefully considered the evidence before it regarding each of the prescribed matters under r.1.15A, that is, the financial, household, social and commitment aspects of the relationship.

48. Having carefully considered all the evidence and for the reasons above, the Tribunal is not satisfied that at the time of application, the parties had a mutual commitment to a shared life as a de facto couple to the exclusion of all others; that the relationship between them was genuine and continuing; and that they lived together and not separately or apart on a permanent basis. The Tribunal is therefore not satisfied the requirements of section 5CB(2) of the Act were met at the time of the visa application.

49. The Tribunal is further not satisfied that at the time of this decision the parties have a mutual commitment to a shared life as a de facto couple to the exclusion of all others and that the relationship between them has been and remains genuine and continuing. The Tribunal is also not satisfied that they have lived together or not separately and apart on a permanent basis. The Tribunal is therefore not satisfied the requirements of section 5CB(2) of the Act are met at the time of this decision.

1. The Tribunal is therefore not satisfied that the parties’ relationship fulfilled the criteria contained in clause 309.211(2) of the regulations at the time the visa application was made and at the time of this decision. Therefore, The Tribunal finds that the visa applicant does not meet the requirements of clauses 309.211(2) and 309.221(1).

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

   DECISION

3. The Tribunal affirms the decisions not to grant the visa applicant’s Partner (Provisional) (Class UF) visas.

   Edward Howard
   Member

   
   

   ATTACHMENT - Extract from Migration Regulations 1994

   1.09A     De facto partner and de facto relationship

   (1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.

   Note 1     See regulation 2.03A for the prescribed criteria applicable to de facto partners.
   Note 2     The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
   Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions 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 in a de facto relationship with 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).