JAOHER (Migration)

[2019] AATA 2201

JAOHER (Migration) [2019] AATA 2201 (26 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Suaad Shaker Jaoher Jaoher

CASE NUMBER:  1723524

HOME AFFAIRS REFERENCE(S):           BCC2015/3677174

MEMBER:Helena Claringbold

DATE:26 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 26 February 2019 at 1:29pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – relationship ceased – family violence claim – lack of independent evidence that a genuine spousal relationship ever existed – emotional support and companionship – long-term commitment – pressured over a relinquished inheritance – demand abortion of child – father of child not named on birth certificate – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 820.211, 820.221

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 4 December 2015, Ms Suaad Shaker Jaoher Jaoher, the applicant, applied for a Partner (Temporary) (Class UK) visa.  The application was based on her spousal relationship with Mr Akram Fadhil Jolan Jolan, the sponsor.

2. On 11 September 2017, a delegate of the Minister for Immigration and Border Protection to refused to grant the visa. The delegate was not satisfied that the applicant met cl.820.211 and specifically cl.820.211(2)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act).

3. On 13 November 2018, the Tribunal invited the applicant to a Tribunal hearing on the On 18 February 2019.  On 6 February 2019, the applicant wrote to the Tribunal and gave reasons to have the Tribunal hearing conducted by telephone. The Tribunal considered the information the applicant provided.  The Tribunal determined that the applicant appear before it in person because the review involved consideration of a claimed ceased relationship and claims of family violence. However the Tribunal rescheduled the Tribunal hearing for a later time on 18 February 2019 to accommodate the applicant.

4. On 18 February 2019, the applicant appeared before the Tribunal to give evidence and present arguments. She provided the Tribunal with a copy of the delegate’s decision record. The applicant had two support people in attendance at the Tribunal hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   ISSUE

6. The issue in this matter is whether the applicant was the spouse of the sponsor as defined in s.5F of the Act.

   BACKGROUND ON THE EVIDENCE

7. The applicant was born in 1975 in Iraq. Her parents and four siblings live in Iraq.  She has a sibling living in USA, one in Canada and one in Germany. She has three siblings living in Australia. She is a citizen of Iraq and at the time of application stated that she held a Swedish passport.  On 30 August 2007, she married Mr Nasir Mohsen Awodah, in the Shari Court, Damascus. On 30 July 2015, the marriage to Mr Awodah ended.  From December 2005 to June 2008 she lived in Baghdad, Iraq.  From June 2008 to September 2015, she lived in Stockholm, Sweden. As detailed in the delegate’s decision record on 9 September 2015, she entered Australia as the holder of a visitor visa. .

8. The sponsor was born in 1961 in Iraq. As declared on the visa application form the sponsor’s parents are deceased. He has two siblings living in Sweden. . He has a sibling living in Iraq and a sibling living in Australia. On 15 August 2014, he entered Australia.

9. On 9 September 2015, the parties met. On 27 October 2015, the parties married. On 23 August 2017, a case worker wrote that the applicant and her daughter were referred by a domestic violence line to the Marian Centre ‘as a result of escaping domestic violence from her husband on 10 January 2017. On 18 October 2017, the applicant’s migration agent informed the Department that the applicant presented at their office, on the same day as the email and provided a birth certificate for her newly born baby.  He stated that the applicant ‘claims to have lost contact with the sponsor and he refused to include his details in the birth certificate’. 

10. In support of the claim of family violence the applicant provided information including a statement from the applicant, a letter dated August 2018, from a psychologist, a letter dated 5 February 2019,  from a counsellor of a domestic violence service , a letter dated August 2017, from a case worker, a notice of decision dated 14 September 2018, from Victims Crime NSW, a determination by an assessor of Victims Services NSW dated 2 October 2018, letter from a medical practitioner dated June 2018, stating that the applicant is having severe airplane headaches on landing, an email dated August 2018, from Wimlah and medical records for the applicant’s daughter.

    Were the parties validly married?

11. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.  At the time of application the applicant provided evidence of her marriage to the sponsor. 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).

    Was the applicant the spouse of an eligible person?

12. Clause 820.211(2)(a) and cl.820.221 require that at the time the visa application was made, and at the time of this decision, the applicant was the spouse or de facto partner of an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claimed to be the spouse of the sponsor who is an Australian citizen who had turned 18.

13. ‘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 r.1.15A(3) of the Regulations, which is extracted in the attachment to this decision.

    CLAIMS AND FINDINGS

    Are the other requirements for a spouse relationship met?

14. 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 of the parties’ relationship and the nature of their household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

15. With regard to the parties’ financial matters, the applicant provided the Department with a bank letter confirming that the parties opened a joint bank account on 31 October 2015. The letter does not give any information about the usage of the account.  There is no other independent information about the parties’ financial matters. The applicant told the Tribunal that the parties’ income was derived from government payments.  She stated that the parties used to have a joint bank account but the sponsor didn’t leave any money in the account. She told the Tribunal that the parties purchased furniture together and the sponsor paid the rent in cash. She claimed that the sponsor destroyed all evidence about the parties’ financial matters. Because of the lack of independent evidence to the contrary, the Tribunal does not accept that the parties had any joint ownership of real estate or other major assets and other than the accounts detailed above, that they had other joint liabilities.  It does not accept that the parties had any legal financial obligations with regard to the other party or that they pooled their financial resources or shared day-to-day household expenses.

16. In the parties’ household, the applicant told the Tribunal the following: on 8 October 2015, the parties moved in to live with her sister and her husband in Casula.  She was unable to provide the address in Casula but said that this is the only place the parties lived together. In May 2016, she left the sponsor and the Casula premises.  While living in Casula the parties shared the cooking and the cleaning was shared among the occupants of the home. At the time of application photo ID cards were provided for the applicant and the sponsor and these record the Casula address. However, there is no other independent evidence before the Tribunal that the parties ever lived together. The Tribunal asked the applicant why a Liverpool address was provided for the parties on the marriage certificate.  The applicant stated that she didn’t know why that was the case and perhaps her lawyer had provided this address. The applicant told the Tribunal that the sponsor wanted her baby aborted and refused to have his name on the birth certificate.  On the evidence, the Tribunal does not accept that the parties had any joint responsibility for the care and support of children and does not accept that the parties lived together or shared the responsibility of housework.

17. Regarding the social aspect of the parties’ relationship, there is limited independent evidence about how the parties socialised.  The applicant’s aunt and sister in statutory declarations dated November 2015 stated the following:  they knew about the applicant’s relationship with the sponsor since they began talking.  The aunt stated that she attended the parties’ wedding and saw them around six times a week. The sister stated that she saw the parties almost every day and went out to dinner with them. They both believed that the parties’ relationship was genuine.  The applicant told the Tribunal that the parties went shopping, visited Centrelink and the doctor together and went to dinner with her sister and went to parties. Photographic evidence depicts the parties together and with others on their wedding day and together and with others at other locations. The Tribunal accepts that the authors of third party statements believed the parties’ relationship to be genuine; however, they provide little information about how they came to that view. The Tribunal accepts that the parties represented themselves to other people and were recognised as being married to each other and undertook some social activities together.

18. Concerning the parties’ commitment, the applicant claims the following: the parties knew each other from September 2015 and moved in together in Casula on 8 October 2015. They married on 27 October 2015. The parties discussed that the applicant previously had a share in family property in Iraq.  From the first day of their marriage the sponsor pressured the applicant to obtain the share of her inheritance or its equivalent in money. She explained that she had relinquished her share in the property prior to the parties becoming involved with each other. However the sponsor continually pressured her about the property and when the applicant refused to act, the sponsor became violent and beat her. He initially joked with her that he would ‘get her to go back to Sweden’. But the threats continued and he stated that he would not leave her ‘any right to remain in Australia’. The applicant fell pregnant and was informed that she would give birth prematurely or the child would be ‘disabled’.  The sponsor wanted the child aborted.  However the applicant had previously miscarried eight times and wanted to keep the child. When she experienced a preterm premature rupture of membranes (waters breaking) she left the Casula home and has not lived with the sponsor since that time. The applicant moved in to live with her sister and her husband. The applicant gave birth to a daughter in July 2016.  She claims that the sponsor is the father of her daughter.  However, the birth certificate she provided does not record the name of the father and there is no other independent evidence to support that the sponsor is the father of the child. Because of problems caused by the sponsor and her brother-in-law she was asked to leave the home.  At that time, she approached the refuge and has lived there with her daughter since that time.

19. The applicant told the Tribunal that the sponsor destroyed all evidence about their relationship and turned people against her. While the Tribunal is sympathetic to the circumstances detailed above, even after considering the length of the parties’ claimed relationship and because of the lack of independent evidence, to the contrary it does not accept that the parties ever lived together or that they were committed to their relationship or offered each other emotional support and companionship or that they saw their relationship as long term.  From the beginning of the parties’ marriage, the sponsor pressured the applicant about a relinquished inheritance and threatened to return her to Sweden and when she became pregnant demanded that the applicant abort the baby and refused to have his name on the child’s birth certificate.

20. The Tribunal considered the applicant’s claim that the sponsor is the father of her daughter. While acknowledging its importance, even if the Tribunal accepted this claim, the Tribunal is not satisfied that a child born to the parties, in itself, supports that the parties were in a genuine and continuing spousal relationship.

    Other considerations

21. The Tribunal told the applicant that the visa application forms records that statements had been provided about different of the parties’ relationship and the statements were not on the Department’s file. The applicant told the Tribunal that her lawyer provided the information to support the partner visa application and the sponsor destroyed all other evidence.  The tribunal requested a copy of these statements from the Department however they were not provided. Ultimately, the Tribunal has come to its decision after considering the evidence.

22. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered all the evidence individually and as a whole including the Department and Tribunal case files and the evidence at the Tribunal hearing. Ultimately, because of the lack of independent evidence about the parties’ financial matters and about their household and about their commitment to their relationship and after considering the evidence completely, the Tribunal is not satisfied on the evidence that a spousal relationship ever existed between the applicant and the sponsor. Accordingly, the applicant cannot satisfy cl.820.211(2) of Schedule 2 to the Regulations.

23. The Tribunal considered the information about the claims of family violence, in so far as it related to the parties’ relationship. That information is a result of the applicant’s self-reporting and is not substantiated by independent evidence other than that already discussed in this decision record. As the Tribunal is not satisfied that the parties ever shared a spousal relationship, it has not gone on to consider the applicant’s claims of family violence. As a result, the applicant does not satisfy cl.820.221(3) of Schedule 2 to the Regulations.

24. The Tribunal is not satisfied that at the time of the visa application or at any time, the sponsor and the applicant ever had a mutual commitment to a shared life as spousal partners to the exclusion of all others; or that their relationship was genuine and continuing.  The applicant therefore does not meet the requirements of s.5F of the Act.

25. There is no evidence before the Tribunal that the applicant satisfies any of the alternate criteria for the grant of the visa. Therefore, the applicant does not meet cl.820.211 and cl.820.221 as required for the grant of the visa.

    DECISION

26. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Helena Claringbold
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).