Jalloul (Migration)

[2024] AATA 2080

Jalloul (Migration) [2024] AATA 2080 (12 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Mohamad Jalloul

VISA APPLICANT:  Mrs Samaher Zod

CASE NUMBER:  2315930

DIBP REFERENCE:  BCC2021/1857381

MEMBER:Glynis Bartley

DATE:12 June 2024

PLACE OF DECISION:  Sydney

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 12 June 2024 at 11:13am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country – no joint assets and no pooling of financial resources because applicant has no income or assets – parties living together in applicant’s house in home country for extended periods and currently – travel, and socialisation with families and friends – nature of commitment – rapid development and marriage explicable in cultural background and personal circumstances – sponsor’s age and health, and security situation in home country – consistent, coherent and compelling oral evidence and supporting material – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cls 309.211(2), 309.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

ISSUE

1. The issue in this review is whether the visa applicant, Mrs Samaher Zod, is the spouse of the sponsor, Mr Mohamad Jalloul, as defined in s 5F of the Migration Act 1958 (the Act).

   APPLICATION FOR REVIEW

2. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s 65 of the Act.

3. The visa applicant applied for the visa on 28 September 2021 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.

4. The delegate refused to grant the visa on 10 August 2023 on the basis that the visa applicant did not meet cl.309.211 and cl.309.221 of the Regulations. The delegate was not satisfied that the visa applicant was the spouse of the review applicant, as defined in s 5F of the Act.

5. On 4 October 2023, the review applicant applied to the Tribunal for review of the delegate’s decision.

6. On 1 March 2024, one of the review applicant’s daughters requested on his behalf  that the application be expedited due to her father’s health problems and the unstable situation in Lebanon. The application was prioritised by the Tribunal registry on 6 March 2024 due to the volatile security situation in Lebanon.

7. The review applicant and the visa applicant (the parties) appeared before the Tribunal by video conference from Lebanon on 5 June 2024 to give evidence and present arguments. The Tribunal took oral evidence separately from the review applicant before taking oral evidence from the visa applicant. The Tribunal was assisted by an interpreter in the Arabic language, who attended by video conference.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   BACKGROUND

9. The review applicant is a 73-year-old Australian citizen by grant. He was born in Lebanon and migrated to Australia in 1977. The review applicant has declared one previous marriage that ended in divorce. He has six adult children from that relationship, all of whom live in Australia. The review applicant’s parents are deceased. He has one brother and one sister living in Australia, and three brothers living in Lebanon. The review applicant is a retired hospital theatre orderly. He receives a Centrelink aged pension.

10. The visa applicant is a 43-year-old Lebanese citizen. She has not declared any previous marriages or de facto relationships. The visa applicant’s mother is deceased. Her father and 12 siblings live in Lebanon. The review applicant is not in the paid workforce.

11. The parties stated in the application that they met in Lebanon on 1 March 2017. The review applicant sought approval for the marriage from the visa applicant’s parents and, after one week, they gave their consent. The parties were married in Lebanon on 29 April 2017.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Prior to the hearing, the review applicant submitted additional evidence to support the application, including but not limited to the following: a statement from the review applicant’s daughter requesting that the application to be given priority, money transfer receipts, a flight itinerary and medical reports regarding the parties.

13. In making my decision, I have had regard to the Department and Tribunal files and the oral evidence at the hearing. I was mindful that the application was lodged almost three years ago, and I had the benefit of receiving additional evidence that was not available to the delegate, including the ability to speak directly with both parties.

14. The parties gave coherent and compelling oral evidence regarding the circumstances in which they met, the nature of their relationship and their household living arrangements.  Their evidence was consistent with the documents submitted to support the application. They responded to questions in an open and forthright manner. I was satisfied that the parties’ oral evidence at the hearing was sincere and could be relied upon.

    Whether the parties are in a spouse or de facto relationship

15. 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.

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 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?

17. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. There was no evidence before me to cast doubt on the validity of the parties’ marriage in Lebanon on 29 April 2017, and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, I find 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?

    Financial aspects of the relationship

18. The review applicant’s only income is an aged pension from Centrelink. He had some superannuation when he retired but gifted it to his children to enable them to purchase property in Australia. The review applicant owns a three-bedroom home in Lebanon, which the parties are living in together. The visa applicant does not work and has no independent source of income. She is entirely reliant upon the review applicant to meet her day-to-day needs, including accommodation, food and clothing. The money transfer receipts provided confirm that the review applicant has provided some financial support to the visa applicant during periods that he is living in Australia.

19. The parties do not own any joint assets, have any joint debts or owe legal obligations to one another. They gave wholly consistent oral evidence regarding the financial aspects of their relationship. The visa applicant was aware of the review applicant’s aged pension. The parties have not pooled their financial resources or shared day-to-day household expenses as the visa applicant has no income or assets of her own. This is not surprising given the parties’ cultural background and their remote living circumstances in Lebanon. The parties explained during the hearing that the visa applicant plans to do some work once she is settled in Australia. The visa applicant said she aims to work but intends to prioritise providing care to her husband due to his age and health problems. I was satisfied that the parties intend to pool their financial resources and share day-to-day household expenses in the future.  

20. The financial aspects of the parties’ relationship are consistent with them being in a genuine and continuing spousal relationship.

    Nature of the household

21. I was satisfied on the basis of the evidence before me that the parties are currently living in the review applicant’s home in Lebanon. The review applicant’s movement records confirm the parties’ oral evidence that he has lived in Lebanon for extended periods (approximately four and a half years in total) since the parties’ marriage in April 2017. Significantly, the visa applicant continues to live in the review applicant’s home when he is in Australia, and she has done so since their marriage. The review applicant lives with one of his daughters when he is in Australia. The visa applicant is able to drive and sometimes travels to her family’s home and spends a few nights with them when the review applicant is absent.

22. The parties gave consistent oral evidence that the visa applicant does almost all of the household chores, such as cooking, cleaning and laundry. They share the gardening, including growing vegetables. The parties do not have any joint responsibility for the care and support of children.

23. I placed weight on the establishment of a joint household in Lebanon since April 2017. This aspect of the parties’ relationship supports a finding that they are in a genuine and continuing spousal relationship.

    Social aspects of the relationship

24. The parties gave consistent oral evidence that the visa applicant’s siblings attended their wedding celebration in April 2017. The review applicant’s siblings in Lebanon were also present. The review applicant told me that he did not invite his children because they live in Australia. However, he told them about the marriage beforehand. Photographs of the parties’ wedding were provided to the Department and show a large number of guests were present at the celebration.

25. I accepted that the parties socialise on a monthly basis with their family members in Lebanon, including the visa applicant’s elderly father. Photographs provided confirm that they travelled to Turkey for a few days after their wedding for their honeymoon. In 2023, the parties went on a one-week holiday to Oman with three of the review applicant’s children. The parties told me that they enjoy eating out at restaurants together.

26. Witness statutory declarations from two of the review applicant’s friends confirm that they believe the parties’ relationship is genuine. Importantly, both have visited and socialised with the parties in Lebanon. I have placed weight on that evidence, as well as the statement from the review applicant’s daughter, Ms Samara Jalloul, dated 29 February 2024. Ms Jalloul said she travelled to Lebanon in May 2023 and spent time with the parties. She described their living arrangements as modest and confirmed that they live together and take care of each other. Ms Jalloul said her father lives with her when he is in Sydney, and he spends a lot of time on the telephone speaking with his wife.

27. The review applicant gave persuasive oral evidence that he has notified Centrelink of the parties’ marriage.

28. I was satisfied on the basis of the photographs, the witness statutory declarations and statements, and the oral evidence at the hearing that the parties undertake joint social activities and represent themselves to other people as being married to each other.

29. The social aspects of the relationship support a finding that the parties are in a genuine and continuing spousal relationship.

    Nature of the persons’ commitment to each other

30. I find that the parties have been married for seven years and have lived together in Lebanon for a total period of around four and a half years since their marriage. The parties demonstrated a detailed knowledge about each other’s families and personal circumstances during the hearing. I accepted that they communicate by telephone and video on a daily basis when the review applicant is in Australia.

31. While the parties married around eight weeks after they first met in 2017, I accepted that the review applicant was actively seeking a life partner after his divorce and approached the visa applicant’s family to seek their consent for the marriage while he was visiting family members in Lebanon. The visa applicant is one of 13 children and was single. While the inception of the parties’ relationship was rapid and appears somewhat rash, it is explicable in the context of their individual personal circumstances and cultural background.

32. The parties were open about the difference in their ages (30 years) when questioned about it during the hearing. The review applicant said his children made a few comments early on but have accepted the parties’ relationship and now support it. The visa applicant gave oral evidence that her parents gave their approval for the marriage and there have been no negative responses about the match. Both parties said large age differences are common in their culture, which I accepted.

33. [Information redacted.]

34. The parties gave similar oral evidence regarding their plans for their life together in Australia. They intend to rent accommodation and are hopeful that the visa applicant can find work once she has settled in. The review applicant said the visa applicant is a good cook and may be able to find work in a restaurant. The parties said they wish to continue to care for one another. The situation in Lebanon is increasingly volatile and the review applicant no longer feels safe there. He also misses his children and grandchildren and requires intermittent medical treatment in Australia. The review applicant said he has a number of serious health problems and will increasingly require assistance from his wife as he ages. The visa applicant demonstrated an awareness of the review applicant’s health problems, including a chronic lung condition. The parties interacted in a warm and familiar manner throughout the hearing. I was satisfied that they provide one another with a high degree of companionship and emotional support.

35. I find that the parties have a long-term commitment to each other. This provides substantial weight in support of a finding of a genuine and continuing relationship.

    Conclusions

36. Given the above findings, I was satisfied that at the time of the visa application and at the time of this decision the parties were in, and continue to be in, a genuine and continuing relationship and have a mutual commitment to a shared life as husband and wife to the exclusion of all others. They are currently living together in the review applicant’s home in Lebanon and intend to live together in Australia. The parties therefore do not live separately and apart on a permanent basis.

37. I was satisfied that the requirements of s 5F(2) are met at the time the visa application was made and at the time of this decision. Therefore, the visa applicant meets cl.309.211 and cl.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.

    DECISION

39. 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

    Glynis Bartley
    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).