Nasser (Migration) - [2025] ARTA 346

NASSER (MIGRATION) [2025] ARTA 346 (27 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Ali Nasser
Visa Applicants:  Ms Mona Kobeissi
Mr Ali El Sabeh
Master Hadi Al Sabeh
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2312848

Tribunal:Senior Member A Murphy
Place:Melbourne
Date: 27 March 2025
DECISION:The Tribunal sets aside the decisions under review and remits the applications for a Partner (Provisional) (Class UF) visa for reconsideration, in accordance with the order that:
The first named 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.

The second and third named visa applicants meet the following criteria for a Subclass 309 (Partner (Provisional)) visa:
·cl 309.311 of Schedule 2 to the Regulations; and
·cl 309.321 of Schedule 2 to the Regulations.

Statement made on 27 March 2025 at 11:07am
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa - subclass 309 – parties validly married – sponsor has transferred significant amounts of money to the visa applicant over a period of five years – nature of the household they shared is indicative of a spousal relationship – parties are in a genuine spousal relationship – have a commitment to a shared life together to the exclusion of all others – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5,65
Migration Regulations 1994, rr 1.12, 1.15, Schedule 2, cls 309.211, 309.221, 309.311, 309.321
CASES
He v MIBP [2017] FCAFC 206
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 18 June 2023 to refuse to grant the visa applicants a Partner (Provisional) (Class UF) Subclass 309 visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The first named visa applicant (the visa applicant) applied for the visa on 4 October 2021 on the basis of her relationship with their 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. 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 the basis that the visa applicant did not satisfy cl. 309.211, 309.221 or 309.311 because the delegate was not satisfied on the available evidence that the visa applicant was the spouse of the sponsoring partner.
The review applicant appeared before the Tribunal on 19 March 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant by telephone from Lebanon. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.
The applicants…

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.

Continue reading Nasser (Migration)

Details

AGLC: Nasser (Migration) [2025] ARTA 346
Case: [2025] ARTA 346
Decision Date: 27 March 2025

CaseChat Overview and Summary

In the case of Nasser (Migration), the Tribunal reviewed a decision to cancel a Partner (Provisional) (Class UF) visa, subclass 309. The applicants, including the visa applicant, her sponsor, and her two sons, sought to overturn the visa cancellation and establish their eligibility for the visa. The primary issue before the Tribunal was whether the visa applicant was indeed the spouse of the sponsoring partner, as required by the Migration Regulations.

The Tribunal assessed the validity of the marriage between the applicants and whether they met the criteria for a genuine spousal relationship. This included examining the financial ties between the parties, the nature of their shared household, and their social relationship, as outlined in the Regulations. The Tribunal determined that the evidence supported the conclusion that the applicants were validly married and that they maintained a genuine spousal relationship, meeting all the statutory and regulatory requirements for such a relationship.

Given the evidence presented, the Tribunal concluded that the decision to cancel the visa was flawed. It found that the applicants were in a genuine spousal relationship, and therefore the matter should be remitted back to the Department for reconsideration in light of these findings. The Tribunal’s decision was grounded in the comprehensive evidence provided, which demonstrated the mutual commitment and shared life of the applicants, fulfilling all legal requirements for a spousal relationship.

In light of the Tribunal's findings, the decision to cancel the visa was set aside, and the matter was remitted for reconsideration. The Tribunal's decision underscores the importance of thoroughly examining all aspects of a relationship to determine its genuineness and the eligibility of the visa applicants.

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 is set aside and the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the visa applicant is the spouse of the sponsoring partner, the review applicant.Whether the parties are in a spouse or de facto relationship 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. ‘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 sponsor’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? If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The parties have produced to the Department a Certificate of Marriage issued by Lebanon’s Ministry of the Interior indicating that they married in Lebanon on 23 December 2019. The Tribunal notes that the delegate raised no issue as to the validity of the marriage, but rather accepted that the applicant and sponsor were married as claimed. 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 other requirements for a spouse relationship met? The visa applicant is a 55-year-old female national of Lebanon. The second and third named applicants are her sons, aged 19 and 15 at the time of this decision. The sponsor is a 69-year-old male who was born in Lebanon and who migrated to Australia in 1988 with his first wife, who is now deceased. The visa applicant is the sister of the sponsor’s first wife and has known the sponsor as part of her extended family since around 1985.

Decision

Reasons for decision

The Tribunal is satisfied that the financial affairs of the sponsor and the visa applicant, the nature of their household when they are together, the social aspects of their relationship and the nature of their commitment evidence a mutual commitment to a shared life as husband and wife to the exclusion of all others, that their relationship is genuine and continuing and that they do not live separately and apart on a permanent basis.Conclusion As To The Relationship As stated above, the Tribunal is satisfied that the parties are validly married, as required by s 5F(2)(a) of the Act. For the reasons given with respect to the reg 1.15A(3) matters, the Tribunal is satisfied that, at both the time of application and at the time of this decision, the visa applicant and the review applicant: had and have a mutual commitment to a shared life as husband and wife to the exclusion of all others, as required by s 5F(2)(b) of the Act; had and have a genuine and continuing relationship, as required by s 5F(2)(c) of the Act; and did not and do not live separately and apart on a permanent basis, as required by s 5F(2)(d)(ii) of the Act. 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 the time of this decision. Therefore the visa applicant meets cl 309.211 and cl 309.221. The secondary visa applicants The second and third named applicants are the primary visa applicant’s sons, aged 19 and 15 at the time of this decision. They each claim that the meet the definition of a member of the family unit in r.1.12 of the Regulations on the basis that they are a dependent child of the family head, their mother. At the time of application both children were under the age of 18 and each was a member of the family unit of their mother and met the criteria set out in 309.311. As at the time of the Tribunal’s decision, the second name applicant is aged 19 and must show that he is dependent on their mother, or that he is incapacitated for work due to the total or partial loss of his bodily or mental functions. It is not suggested in this case in this case that the second named applicant is incapacitated for any reason. The definition of ‘dependent’ for a person who is not incapacitated for any reason is found in r.1.05A(1)(a) of the Regulations. It requires that: (a) at the time when it is necessary to establish whether the first person is dependent on the other person: (i) the first person is, and has been for a substantial period immediately before that time, wholly or substantially reliant on the other person for financial support to meet the first person’s basic needs for food, clothing, and shelter; and (ii) the first person’s reliance on the other person is greater than any reliance by the first person on any other person, or source of support, for financial support to meet the first person’s basic needs for food, clothing, and shelter… The Tribunal accepts the evidence of the applicant and the sponsor to the effect that the second named applicant continues to live at home with his mother and younger brother and is currently studying science at university in Lebanon, with an intention of studying dentistry. The Tribunal accepts that he continues to be wholly or substantially reliant on his mother to meet his basic needs for food, clothing and shelter.

Ratio Decidendi

Legal Principle Established

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