Moussa (Migration) - [2020] AATA 1049

Moussa (Migration) [2020] AATA 1049 (22 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  Ms Hosin Moussa
VISA APPLICANT:  Mr Ramy Hanafy Essa Hussin
CASE NUMBER:  1732234
DIBP REFERENCE(S):  OSF2016030552
MEMBER:C Morfuni
DATE:22 March 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.
Statement made 22 March 2020 at 2.45pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married in home country soon after first face-to-face meeting – financial, household and social aspects of relationship – nature of commitment – age difference – limited evidence of relationship, even given that parties live in different countries – contradictory and inconsistent evidence – evidence contrived towards migration outcome – sponsor initially stated that relationship was over – no mutual commitment to shared life from the outset – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359AA
Migration Regulations 1994 (Cth), r 1.15A(3), Schedule 2, cl 309.211(2)(a), 309.221
CASES
Garcevic v MIAC [2012] FMCA 931
He v MIBP [2017] FCAFC 206
MILGEA v Dhillon [1990] FCA 144

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 October 2017 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant referred to in this decision as the applicant, applied for the visa on 7 November 2016 on the basis of his relationship with the review applicant and sponsor and who is referred in this decision as the sponsor. Where both are referred to together in this decision, they are referred to as the parties.
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.
The delegate refused to grant the visa on 11 October 2017 on the basis that the visa applicant did not satisfy cl.309.211 because the delegate found that the applicant did not meet the definition of spouse under s5F of the Act, specifically subclause 309.211(2)(a) at the date of application or at the date of decision.
The sponsor lodged an application for review of the 309 decision on 19 December 2017 together with a copy of the delegate’s decision.
The Tribunal’s decision is made in accordance with the President’s Direction 8.2 which states:
As a general rule, where the Minister for Immigration (Minister) or delegate has made an adverse decision on particular criteria or issues, the AAT should restrict its review to those…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Moussa (Migration) [2020] AATA 1049
Case: [2020] AATA 1049
Decision Date: 22 March 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an appeal by a visa applicant against a decision to refuse a Partner (Provisional) (Class UF) visa. The core dispute concerned whether the applicant and the sponsor, an Australian citizen, were in a genuine and continuing spouse relationship as defined by the Migration Act 1958 (Cth) at the time of the application and at the time of the Tribunal's decision.

The Tribunal was required to determine if the parties met the definition of a spouse relationship under section 5F of the Act. This involved assessing whether they were validly married, had a mutual commitment to a shared life to the exclusion of others, and whether their relationship was genuine and continuing, including considerations of their living arrangements. To inform this assessment, the Tribunal had regard to the financial, household, social aspects, and the nature of their commitment to each other, as outlined in Regulation 1.15A(3) of the Migration Regulations 1994.

The Tribunal found that while the parties were validly married in Egypt, other requirements for a spouse relationship were not met. Limited evidence was presented regarding the financial aspects, with a joint bank account in Egypt being given little weight as it was likely opened for migration purposes. The Tribunal also found the evidence regarding the nature of their household and social interactions to be unconvincing, particularly noting the sponsor's unusual living arrangements when visiting Egypt. Furthermore, the Tribunal concluded there was insufficient evidence of a genuine and continuing commitment to a shared life, citing the short duration of cohabitation, the sponsor's indication that the relationship was over, and the parties' differing views on future plans such as having children. The Tribunal found the evidence to be contradictory and contrived towards a migration outcome.

Consequently, the Tribunal affirmed the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa, as the applicant did not satisfy the criteria for the grant of the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether at the date of this decision the parties were in a spouse relationship as defined in section 5F of the Act at the date of application and if so, continue to be so at the date of this decision. Whether the parties are in a spouse or de facto relationship 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. ‘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? Tribunal finds that the parties were validly married on 3 February 2016 in Egypt under a marriage that is recognised in Australia and is valid for the purposes of the Act as required by s.5F(2)(a). Are the other requirements for a spouse relationship met? Regulation 1.15A (3)(a)The 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.On the evidence provided, the Tribunal finds that the parties have a joint bank account in Egypt. There is no evidence of other joint assets and the Tribunal finds that the parties do not satisfy the requirement of joint ownership of assets attaching little weight to the joint account in Egypt which it concludes was opened purely for migration purposes; oThe applicant sent the sponsor an iphone which she did not use.oOther than as required by law between a married couple, given that the parties live in different countries the Tribunal does not attach great significance to the other financial aspects of the relationship including joint liabilities, the pooling of financial resources and the sharing of day-to-day household expenses, legal obligations owed to the other party as they live in different countries.The Tribunal has considered and finds that it does not place significant weight on these aspects at the date of application.(b)The nature of the household – including any joint responsibility for care and support of children; parties' living arrangements; and any sharing of housework.oThe parties do not have children of their relationship and thus do not have any joint responsibility for the care and support of children. The parties live in different countries, the Tribunal accepts that they could not be expected to have living arrangements consistent with the usual living arrangements of a married couple who reside closer together. Nevertheless, even in Egypt over the few months that the sponsor was there, the Tribunal has already indicated that it finds it highly unusual that the sponsor stayed with the applicant’s brother rather than with her husband, the applicant and it did not accept the reasons provided. It has considered and finds that it does not place significant weight on this aspect at the date of application.(c)The social aspects of the relationship including - whether the persons 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.oThe parties live in different countries and the sponsor has travelled twice to Egypt for relatively short periods where they undertook some outings together and some with friends. The Tribunal accepts that in Egypt, the parties represent themselves to some people as being married to each other. oThe Tribunal has already indicated that it attaches little weight to the third-party documents such as the statutory declarations or purported statutory declarations in support of the relationship which appear in paragraph 16 above. In relation to 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, based on the whole of the evidence before it, the Tribunal does not find that these criteria are met by the applicant. (d)The nature of the persons' commitment to each other – including the 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. o The parties claim to have met in 2015 and married in 2016 nine days after they met and lived together for three months in Egypt until the sponsor was made aware by Centrelink that she needed to be back in Australia otherwise her benefits would be in jeopardy. The duration of the report the relationship is approximately at a maximum (given that the sponsor indicated at the hearing that the relationship is over), just over four years.o The evidence also indicates that the sponsor visited Egypt in December 2016 for three months but lived essentially with sponsor’s brother during that time except for very short periods having spent time living with him Rather than the applicant during the time that she was in Egypt. The Tribunal did not accept the explanations for this provided by the applicant and is unable, on the evidence to find that that was time spent living with the applicant.o The Tribunal does not consider that there is evidence which indicates the degree of companionship and emotional support that the parties draw from each other and whether they see the relationship as long-term given their differing views in relation to their age difference and having children they did not articulate any other long-term plans. The Tribunal finds that none of these criteria are satisfied.

Decision

Reasons for decision

For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.DECISION The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.C MorfuniMemberATTACHMENT - Extract from Migration Regulations 19941.15ASpouse(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).

Ratio Decidendi

Legal Principle Established

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