Mohamed (Migration)

[2021] AATA 488

Mohamed (Migration) [2021] AATA 488 (23 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Ramy Ibrahim Zaky Mohamed

VISA APPLICANT:  Ms Fatma Ramadan Rashad Youssef Elshahawy

CASE NUMBER:  1730904

DIBP REFERENCE(S):  BCC2017/1992334

MEMBER:Helena Claringbold

DATE:23 February 2021

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(2) of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 23 February 2021 at 2:22pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – validly married in home country – financial, household and social aspects of relationship – nature of commitment – pregnancy – sponsor’s mental health – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 5F(2)

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. On 5 June 2017, Ms Fatma Ramadan Rashad Youssef Elshahawy, the visa applicant, applied for a Partner (Provisional) (Class UF) visa. The application was based on her partner relationship with Mr Ramy Ibrahim Zaky Mohamed, the sponsor and review applicant.

2. On 29 November 2017, a delegate of the Minister of Immigration and Border Protection refused to grant the visa. The delegate was not satisfied that the visa applicant and the sponsor are genuine spousal partners. Therefore, the visa applicant did not meet cl.309.211 of Schedule 2 of the Migration Regulations 1994 (the Regulations) made under the Migration Act 1958 (the Act). On 11 December 2017, the sponsor provided the Tribunal with a copy of the Delegate’s Decision Record. This is a review of the delegate’s decision. 

3. On 17 February 2021, the sponsor appeared before the Tribunal to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant. The Tribunal was conducted with the assistance of an interpreter in the Arabic language. The sponsor’s authorised recipient is Mr Toufic Laba Sarkis.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The Tribunal has taken into consideration, individually and completely, the evidence in the Department of Immigration and Boarder Protection’s (the Department’s) case file and the Tribunal’s case file and the evidence at the Tribunal hearing.

   ISSUE

6. The issue in the present case is whether, at the time of visa application and decision, the visa applicant is the spouse of the sponsor as defined in s.5F of the Migration Act 1958 (the Act).

   BACKGROUND ON THE EVIDENCE

7. The visa applicant was born in 1996 in Egypt. Her parents and two siblings live in Egypt. She did not declare any previous partner relationships. On 29 November 2017, she was refused a Partner (Provisional) (Class UF) visa.

8. The sponsor was born in 1983 in El-Gharbia, Egypt. His father is deceased. His mother and three of his siblings live in Egypt.  He has another sibling who lives in the United States of America. From 2012 to 2016, the sponsor was married to Ms H. There are no children of this relationship. On 11 January 2007, the sponsor entered Australia. In June 2014, he was granted a Subclass 801 partner visa.  On 15 September 2015, the sponsor became an Australian citizen by grant.

9. On 1 October 2014, the visa applicant and the sponsor (the parties) first met in Kafr El-Shaikh, Egypt. On 20 October 2014, they became engaged.  On 26 October 2016, the parties married by proxy in Egypt. On 12 April 2018, the parties held their wedding party. The parties first child is due to be born in April 2021.

   Is the visa applicant the spouse of an eligible citizen?

10. The Tribunal is satisfied that the sponsor, at the time of visa application and at the time of this decision, was an Australian citizen.

    Whether the parties are in a spouse or de facto relationship

    Are the parties validly married?

11. At the time the visa application was made the visa 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).

    Are the parties in a spousal relationship?

12. ‘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).

13. 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 other requirements for a spousal relationship met?

    The financial aspects of the parties’ relationship

14. The parties’ income is derived from the sponsor’s salary. When the sponsor lived with the visa applicant in Egypt, he financed the parties household expenses. He provided the Tribunal with copies of money transfers dated from July 2016 to February 2021. The money has been used to provide for the visa applicant’s household expenses.  This includes expenses for IVF procedures to assist pregnancy. Other information relates to the eventual inheritance of land and property currently in the sponsor’s mother’s name and gold given by the sponsor to the visa applicant. The parties do not have any joint ownership of real estate or other major assets or any joint liabilities. They do not pool their financial resources, especially in relation to major financial commitments or owe any legal obligation in respect of the other person.  The Tribunal accepts that there is some sharing of day-to-day household expenses.

    The nature of the parties’ household

15. The sponsor lives in Australia with his sister and her family and the visa applicant lives in Egypt in the sponsor’s apartment. The parties lived together in 2018 for approximately one year and in 2020 for approximately nine months.  During these times the parties lived in the sponsor’s apartment, within a family complex.  The sponsor’s mother and siblings have their own apartment within the complex. While living together, the visa applicant normally did the cooking and cleaning and the sponsor normally did the shopping and also did any heavy work. At other times the parties dined with the sponsor’s mother and siblings. The parties do not have any joint responsibility for the care and support of children. The Tribunal accepts the parties have lived together for approximately one year and nine months. It accepts that when they were living together there was some sharing of responsibility for housework.

    The social aspects of the parties’ relationship

16. The parties told the Tribunal the following.  They live in a remote area and social activities are limited. They enjoy having friends visit them and going to see their friends.  Invariably their living arrangements see them socialise with the sponsor’s family members.  At other times they visit the visa applicant’s family. They also attended family celebrations including the visa applicant’s sister’s wedding. After their traditional wedding in 2018, they went to the northern beaches in Alexandria in Egypt. Declarants of third-party statements in 2017 all attest to the parties’ relationship being genuine. Medical documents refer to the parties presenting as a couple. Photographic evidence depicts the parties together and with others at different locations.  Chat and telephone records have been provided. The Tribunal accepts that the parties represent and are seen as being married to each other and that they plan and undertake social activities together.

    The nature of the parties’ commitment to each other

17. The parties met on 1 October 2014 in Egypt and were engaged on 20 October 2014. The sponsor returned to Australia and his passport was confiscated by police. The parties continued to communicate with each other and decided to marry.  As the sponsor continued to be without his passport, he was unable to travel. Nevertheless, the parties decided to marry and the marriage deed was completed by proxy with the sponsor’s brother. In March 2018, the sponsor’s passport was returned to him and in April 2018, he travelled to Egypt and the parties held their wedding party and began living together and lived together for approximately one year. In 2020, the sponsor travelled to Egypt again and the parties lived together for approximately nine months.  The parties have always wanted to have children.  However, they were not successful and decided to seek medical intervention. After several IVF treatments that were unsuccessful, they decided not to have any further treatments. The visa applicant became pregnant and the parties’ child is due to arrive in April 2021. The Tribunal accepts that the parties met over six years ago and that they have been in a married relationship for over four years.  It accepts that the parties have lived together as a married couple for approximately 21 months. During the time of their relationship they have offered each other companionship and emotional support including when they lived together and apart and during the sponsor’s legal matters and in their attempts to become pregnant. The Tribunal accepts that the parties see their relationship as long-term. 

    Other considerations

18. The Tribunal asked the sponsor about his health and whether he had experienced any health challenges in 2018 or 2019.  The sponsor told the Tribunal the following. The only things that impacted him were the court proceedings and being separated from the visa applicant.  Otherwise he was very healthy and continued to work. The Tribunal then discussed with the sponsor a letter dated 27 May 2019 from Dr Aiman Alsayed, that the sponsor provided the Tribunal. In that letter Dr Alsayed stated the following. The sponsor suffered from adjustment disorder, anxiety and depression. He required 24-hour care which is provided by family members because he is unable to practise his daily activities on his own. He is unstable and prone to falling.  He needs support in the house and is unable to go out by himself. He needs assistance with housework, phone use, transport, meal preparation, reading, home safety, managing finance, social contact and home maintenance. His condition is permanent and unlikely to improve in the next three years.  However, his prognosis can be improved if he has a carer. He wants to have his wife (in Australia) to look after him providing 24-hour personal care and to make sure he is complying with medication. He recommends that his wife be granted the carer visa to enable her to come to Sydney to look after the sponsor in his home. The sponsor appeared visually shocked when the Tribunal told him of the content of this letter. He said that he explained to Dr Alsayed about his feelings and that he was emotionally unwell and needed his wife to be with him. However, this did not mean that he needs the assistance as stated in the letter or that he needs 24-hour care or that he is suffering from depression. He was not prescribed medication and is not taking medication. He felt that there may have been a communication problem between him and Dr Alsayed. The Tribunal is concerned that a medical professional would issue a nefarious letter relating to the sponsor.  The Tribunal is satisfied that the sponsor fully understood the proceedings of the Tribunal hearing and was provided an opportunity for a fair and just hearing.

19. This decision is a synopsis of the evidence before the Tribunal. The Tribunal considered all the evidence individually and completely. The parties provided consistent information about the financial aspects of their relationship and the nature of the parties’ household and the social aspects of their relationship and the nature of their commitment to each other.  When consistent information is provided about these aspects of a relationship it provides the Tribunal with an insight into the parties’ mutual commitment to each other and the genuine nature of the parties’ relationship.

20. The Tribunal accepts the parties’ evidence about their relationship. The  parties have satisfied the Tribunal that at the time of application and this decision that they had and have a mutual commitment to a shared life as a married couple to the exclusion of all others and that their relationship is genuine and continuing and that they live together and do not live separately and apart on a permanent basis.

21. On the basis of the above the Tribunal is 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.

22. Therefore, the visa applicant meets cl.309.211(2) and cl.309.221 of Schedule 2 to the Regulations.

23. 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

24. 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(2) of Schedule 2 to the Regulations; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Helena Claringbold
    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).