Mahmoud (Migration)

[2022] AATA 3265

Mahmoud (Migration) [2022] AATA 3265 (30 September 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Youssef Mahmoud

VISA APPLICANT:  Mrs Aycha Allouch

REPRESENTATIVE:  Mr Nazim El Bardouh

CASE NUMBER:  1825553

DIBP REFERENCE(S):  2015/055149 OSF2015/055149

MEMBER:Donna Petrovich

DATE:30 September 2022

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 30 September 2022 at 2:53pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country – applicant living with sponsor’s mother – length of relationship, daily communication, sponsor’s financial support and extensive visits before COVID restrictions – limited household and social aspects of relationship while living in different countries – decision under review remitted

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

CASE
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 Immigration on 20 August 2018 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 (also known as the applicant) applied for the visa on 25 September 2017 on the basis of her relationship with her sponsor (the review applicant, Mr Youssef Mahmoud). 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) because they were not convinced that the couple had a mutual commitment to a shared life and that their relationship was genuine and continuing.  The delegate concluded that as clause 309.211(2) was not met, cl 309.211(1) was not satisfied.  Further, the delegate also found that the time of decision criteria in cl. 309.221 were not met.

4. The review applicant appeared before the Tribunal on 19 September 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mrs Aycha Allouch.  The hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

   Background

5. The applicant/visa applicant is a thirty eight (38) year old woman from North Lebanon, who was previously married and divorced.  She has three (3) children who all reside with their biological father, as is customary in the case of divorce in Lebanon.

6. The applicant met the sponsor on 8 August 2015, when he visited her family at her uncle’s residence.  The sponsor and applicant are from the same village.  Although they had not previously met in person, their families knew of each other.  This is common in small communities.  After they were introduced, the couple established communication through face book messenger for approximately 12 months. The applicant was initially uncomfortable discussing their communication.  This is because they were not yet betrothed and so such communication is not culturally acceptable.

7. The sponsor is a fifty one (51) year old Lebanese man who migrated to Australia on the 9 December 1994.  He became an Australian citizen on 20 July 2000.  He has been married on three (3) previous occasions, all of which have ended in divorce.  The sponsor has two (2) children for which he pays minimum child support.

8. The applicant and sponsor married on 25 August 2015, with two hundred (200) guests in attendance.  The sponsor has visited his wife (the applicant/visa applicant) - who lives in his house in Lebanon - with his mother in 2018, 2019, 2020 and 2022. It was not possible for him to visit her in Lebanon in 2021 because of Covid 19.        

9. The review applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the applicant and sponsor have a mutual commitment to a shared life, and whether the couple’s relationship is genuine and continuing.

    SPOUSE/DE FACTO (cl.309.211(2) & cl.309.221)

    Whether the parties are in a spouse or de facto relationship

12. Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The applicant provided a copy of their Certificate of Marriage.  Based on this the Tribunal is satisfied that their marriage is valid. On the evidence, the parties are 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

15. The applicant does not work.  This is because the area in Lebanon where she lives currently does not have employment opportunities as it is a small community.  The sponsor works as a welder in aluminium factory in Melbourne.  The sponsor provided evidence to the Tribunal that he supports the applicant financially.  He sends her around $200 per month, to cover living expenses.

16. The applicant currently lives with the sponsor’s mother, in his home in Lebanon.  Since marrying, the couple have spent up to two and a half (2.5 months) together each year.  The only exception being in 2021 as COVID 19 travel restrictions meant they could not spend time together.

17. The sponsor pays for all items when they go out together, and for his travel expenses for his annual trips to Lebanon.

18. The Tribunal has considered that there is little evidence of pooling of resources between the couple as they do not live together permanently due to the visa application circumstances.  They only live together for short periods when the sponsor takes leave from his full-time employment.  Also, there is little evidence of pooling of financial resources as the applicant is not in paid employment.  The Tribunal finds that there is limited pooling of financial resources as the applicant is not employed, has no apparent financial resources of her own and performs unpaid home duties in the sponsor’s home in Lebanon.

19. Consequently, the Tribunal accepts the evidence that the sponsor is financially supporting  the applicant and places some small weight in favour of the applicant in this regard.

    Nature of household 

20. The Tribunal heard that the applicant’s children from her first marriage, live with their father, as is customary in the circumstance of divorce.  The sponsor has access to his two (2) children, who live with his second wife and he pays a nominal amount of child support for their up-keep.

21. The couple do not live together, except when the sponsor visits Lebanon, for up to two and a half (2.5) months annually to visit his mother and his wife.  During these periods of co-habitation, the Tribunal heard that the applicant does the majority of the housework, except if she is unwell.  Then the sponsor will assist with the household duties.  The Tribunal heard that the applicant also performs the majority of the cooking, that she cooks very good Lebanese food and that sometimes the sponsor (who had previously worked as a cook) does the cooking.

22. The sponsor told the Tribunal that he lives alone in Australia, except for when his now adult children visit.  They generally do not stay over as they have their own interests.

23. The Tribunal has considered the circumstances and places some small weight in favour of the applicant on the basis that she is living permanently with the sponsor’s mother.  This is the cultural Lebanese custom after marriage, if the wife is not living with her husband. 

24. The applicant is performing the role of a traditional wife.  Although they have not spent large amounts of time together, each year they seem to have maintained their relationship and household in Lebanon.  They spend time together (although limited) when the sponsor visits Lebanon from Australia.  The sponsor can only visit his wife in Lebanon when he is able to get time off from his job.  This arrangement has remained continuous and consistent, over a period of five (5) years, since marrying.  The couple have maintained their desire to spend time together and their relationship has endured extended periods of separation.  The Tribunal places some weight in favour of the applicant in this regard.

    Social aspects of the relationship

25. The Tribunal heard about how the couple spend their time together.  They visit mountains, restaurants, relatives and friends.  The Tribunal received substantial evidence around the social aspects of their relationship.  The evidence included statutory declarations, together with photographs of their time together, with friends and relatives. 

26. The Tribunal heard in evidence of their wedding with two hundred (200) guests in attendance, and their commitment to each other.  Details of phone conversations with family members, were also supplied to the Tribunal.

27. The Tribunal has considered the submissions and evidence.  The Tribunal finds that the couple’s relationship was formalised in front of two hundred (200) people, including family and friends.  Their relationship is supported by family in the traditional way.  The relationship appears to be viewed by those who know them, as genuine and continuing.  On that basis, the Tribunal places some weight in favour of the applicant.

    Nature of the persons commitment to each other

28. The Tribunal heard that the applicant and sponsor were formally introduced in Lebanon at the home of the applicant’s uncles on 8 August 2015.  Prior to their formal introduction, the couple had been introduced informally and had been speaking online for approximately six (6) months, using face book messenger.  They have both been married previously.  They told the Tribunal that they desired to be married, to live together as husband and wife, and would like the opportunity to start a family.

29. The Tribunal heard and was provided with evidence, that in spite of the difficulties of their separation, the couple spoke to each other every day and have remained together. They spent as much time together as they were able to under the circumstances.  The sponsor takes annual holidays to stay with his wife in Lebanon.  Although they have not lived together for long periods of time, the couple have continued their relationship over a seven (7) year period.  The couple have been married for five (5) of those seven (7) years. The Tribunal views this is as a substantial period of time.    

30. The couple have maintained their relationship via social media messaging and telephone. The Tribunal heard and was provided evidence of the strain that their separation had caused them.  They were both suffering from anxiety and were not sleeping.  They support each other in the hope that they will be able to start their lives together in Australia.

31. The Tribunal has considered the relationship’s duration, the couple’s regular daily contact over the five (5) years of their marriage and their living arrangements in Lebanon when the sponsor takes annual holidays from work.  They appear, from the evidence provided, to live as man and wife, providing support and commitment to each other.  The applicant and sponsor told the Tribunal that they hope to spend the rest of their lives together and to have a child (or children) of their own.  The Tribunal in considering this places significant weight in favour of the applicant.

    Any other circumstances

32. The Tribunal finds that there are no other circumstances.

33. The Tribunal finds that, although the couple do not currently live together permanently because of the constraints and circumstances of the visa conditions, they maintain their relationship.  They have done so for over five (5) years.  In the view of the Tribunal, this is a considerable period of time. The Tribunal acknowledges that the couple live together as husband and wife when they are able to.  Their ability to co-habit is limited due to the sponsor’s full- time employment in Australia.

34. The Tribunal is of the view that they have demonstrated a mutual commitment to a shared life, to the exclusion of all others.  They appear to have a genuine and continuing relationship.  Substantial evidence has been submitted to the Tribunal in relation to their relationship.  The Tribunal is satisfied, based on the evidence provided, that the applicant and sponsor share a mutual commitment to a shared life as a married couple, to the exclusion of all others.  

35. Based on the above, the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made or the time of this decision.

36. Therefore, the visa applicant meets cl.309.211 or cl.309.221.

37. 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

38. 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

    Donna Petrovich
    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).