Omer (Migration)

[2023] AATA 2644

Omer (Migration) [2023] AATA 2644 (5 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Aiman Abdelraof Elawad Omer

VISA APPLICANT:  Mrs Nafisa Yousif Ali Burtan

REPRESENTATIVE:  Mr Puneet Gupta (MARN: 1681569)

CASE NUMBER:  1926658

DIBP REFERENCE(S):  OSF2017/020647

MEMBER:M. Edgoose

DATE:5 July 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 05 July 2023 at 11:58am

CATCHWORDS
MIGRATION –Partner (Provisional) (Class UF) visa - subclass 309 – limited oral evidence regarding the overall social aspects of the relationship – lack of supporting physical evidence – not satisfied that the review and visa applicant have a commitment to each other consistent with a genuine and continuing relationship at the time of application or of this decision– decision under review affirmed 

LEGISLATION
Migration Act 1958, ss 5F, 65, 359
Migration Regulations 1994, r 1.15, Schedule 2, cls 309.211, 309.221

CASES
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 18 July 2019 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 applied for the visa on 18 September 2017 on the basis of her relationship with her 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 309.211(2).

4. The review applicant appeared before the Tribunal on 16 May 2023 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Nafisa Yousif Ali Burtan the visa applicant, Ms Lamya Abdelraof Elawad, the review applicant’s older sister and Ms Elkhnsa Abdelraof Omer, the review applicant’s younger sister. The Tribunal notes that the review applicant’s sisters both reside in the United States of America. The Tribunal hearing was conducted with the assistance of accredited interpreter in the Arabic and English languages

5. The review applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spouse or de facto relationship

7. 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.

8. ‘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 reg 1.15A(3), which is extracted in the attachment to this decision. Each of the specific matters contained in reg 1.15A(3) are effectively questions which must be answered: He v MIBP[2017] FCAFC 206.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The review applicant submitted to the Department a translated copy of a Certificate of Marriage that took place in the Republic of Sudan on 19 April 2013. 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?

   Financial aspects of the relationship

10. The Tribunal has given regard to the oral evidence provided at hearing by the review applicant and visa applicant in relation to the financial aspects of the relationship. The review applicant informed the Tribunal that there is no joint ownership of assets, no joint liabilities, that there has been no pooling of financial resources, no legal obligations is owed to the other party and that there has been no sharing of day-to-day household expenses. The visa applicant gave oral evidence at hearing confirming the responses of the review applicant in relation to the financial aspects of the relationship.

11. The review applicant informed the Tribunal that he has his own individual Westpac bank account as per the submissions made to the Tribunal on 22 December 2022. He further mentioned that it is tradition for the husband to financially supports his wife, the visa applicant and therefore she does not work. Evidence of money transfers from the review applicant to the visa applicant were submitted to the Tribunal. The visa applicant confirmed to the Tribunal that she does not work and that she receives money from her husband, the review applicant to pay for all her living expenses. The Tribunal notes that the only physical evidence submitted to the Tribunal to support these claims was the copies of the money transfers.

12. The review applicant told the Tribunal that he currently works at the Yeppoon Woolworths as a trolley collector. Prior to this he did the same job at a Woolworths in the Rockhampton area.

13. Although the review applicant and visa applicant live in separate countries the couple have provided very limited evidence regarding the financial aspects of the relationship. For these reasons the Tribunal places minimal weight on the overall financial aspects of the relationship. 

    Nature of the household

14. The Tribunal has given regard to the oral evidence provided at hearing by the review applicant and visa applicant in relation to the nature of the household. The couple informed the Tribunal that they have no joint responsibility for care and support of children.

15. The review applicant informed the Tribunal that he currently lives at 93 Whitman Street, Yeppoon, in shared accommodation with five other people and pays $150 per week in rent. The visa applicant informed the Tribunal that she currently lives with her mother, sister, brothers and sister in-law back in Sudan. The Tribunal notes that for period the visa applicant lived in Indonesia. It is claimed the review applicant visited the visa applicant during the time she was living in Indonesia. The review applicant also claims to have spent time with the visa applicant in Sudan where they shared in the responsibilities for housework. The issue for the Tribunal regarding the shared responsibilities for housework is that no physical evidence such as photograph of the couple to support his claim. 

16. The Tribunal places limited weight on the overall aspects of the nature of the household given the lack of physical evidence and the limited oral evidence provided at hearing to support their claims. 

    Social aspects of the relationship

17. The Tribunal has given regard to the oral evidence provided at hearing by the review applicant and visa applicant in relation to the social aspects of the relationship. The review applicant claimed at hearing that friends and acquaintances in the local community of Yeppoon know that I am a married man and that my wife lives back in Sudan. The visa applicant told the Tribunal that people around her in Sudan have seen her with her husband, the review applicant, and know that he is my husband that I am his wife.

18. The review applicant told the Tribunal that the opinion of friends and acquaintances about the nature of the relationship is that they look at the relationship with total respect and that they know that his wife, the visa applicant, has been waiting patiently in Sudan to reunite with him in Australia. The visa applicant mentioned to the Tribunal that her family recognise the review applicant as being her husband and that one day they will be living together. The Tribunal notes that at the time the initial visa application was lodged several Form 888’s was submitted in support of the relationship and at hearing the review applicant’s two sisters provided oral evidence as mentioned later in this decision. A concern for the Tribunal is the lack of current statutory declarations or letters of support that have not been submitted to the Tribunal from family, friends of the visa applicant or work colleagues of the review applicant.   

19. About how the couple have planned and undertaken joint social activities both the review applicant and visa applicant talked about their future plans and not about how they have planned and undertaken joint social activities when they have been together in Indonesia and Sudan. The review applicant mentioned that when they have been together, she is happy and that in the future they will rent a place together in Australia and that they will do any kind of work to survive financially. The visa applicant mentioned that in the future she and her husband have set plans to help and support their families back in Sudan. Given that the couple did not informed the Tribunal how they have planned and undertaken joint social activities when they have been together the Tribunal places minimal weight on their responses.

20. The Tribunal is of the view that the couple have provided limited oral evidence at hearing regarding the overall social aspects of the relationship. For these reasons the Tribunal places little weight on the social aspects of the relationship. 

    Nature of persons' commitment to each other

21. The Tribunal has given regard to the oral evidence provided at hearing by the review applicant and visa applicant in relation to the nature of persons' commitment to each other. The couple both confirmed at hearing that they first met in February 2011 in Sudan and that on 3 February 2012 became engaged. As per the marriage certificate submitted the couple married on 19 April 2013 in Sudan.

22. The review applicant confirmed to the Tribunal that he and the visa applicant have only lived together for very short periods of time when he has visited the visa applicant. According to the review applicant the longest time they have lived together was for 2 months after they were married in April 2013. The visa applicant informed the Tribunal that they had also lived together in Dubai for one month, Egypt for one month and on occasions during the six years she spent living in Indonesia. The issue for the Tribunal regarding this oral evidence is that the couple have provided very limited supporting physical evidence to support the time in which they claim to have lived together. Given this the Tribunal places some weight on the oral evidence of the claimed times they have lived together.

23. The review applicant claimed at hearing that they drew companionship and emotional support from each other by calling each other every day through the social media application WhatsApp. On 21 December 2022 the Tribunal received a submission that included transcripts of the claimed call logs between the couple. The issue for the Tribunal is that the majority of the call logs were in a language other than English and primarily mentioned that a audio or video call had taken place. The Tribunal accepts that the couple have communicated on a regular basis but places limited weight on the call log submission as most of the submission was in a language other than English.

24. Both the review applicant and visa applicant informed the Tribunal that they see the relationship as a long term one.

25. The review applicants’ final comment to the Tribunal was that it was him who filled out the initial visa application and that as a couple we have waited for their answers. The Tribunal notes that the review applicant was provided with the reasons why his initial application was refused as per the delegates decision dated 18 July 2019. He then appealed to this Tribunal and this is the decision for that appeal. The review applicant told the Tribunal that he just wants to be with his wife and that he admits to not being organised and not settled emotionally.

26. The visa applicant’s final comment to the Tribunal was that she wished the Tribunal to given them a fair and fresh review, that they have been married for 10 years and have never really lived together. That they have not had a chance to build a proper family and to have and that it has been an extremely hard time for both of them.

27. Having considered the oral evidence provided at hearing and the overall lack of physical evidence to support their claims the Tribunal places minimal weight on the nature of the persons’ commitment to each.

    Any other circumstances of the relationship

28. Ms Elkhnsa Abdelraof Omer, the review applicant’s younger sister lives in the United States of America. Ms Omer provided oral evidence at hearing. She informed the Tribunal that she attended the wedding in 2013 and has developed a good friendship with the visa applicant although they live in different countries. She further informed the Tribunal that the review applicant, her brother, met the visa applicant through friends and that their relationship soon developed. One year after meeting for the first time the couple became engaged and married in 2013. Ms Omer told the Tribunal that her brother, the review applicant, has travelled to Indonesia to visit the visa applicant after the visa application was refused. The Tribunal notes that the visa applicant at time of hearing was back in her home country. Ms Omer provided no further evidence to the Tribunal and the Tribunal thanked her for her contribution to the hearing and the call ended. The Tribunal found Ms Omer to be a credible witness.

29. Ms Lamya Abdelraof Elawad, the review applicant’s older sister also lives in the United States of America. Ms Elawad informed the Tribunal that her brother, the review applicant came to Sudan in 2011 and met the visa applicant who was a friend of the family. It was after this meeting that the couple started chatting over social media and the claimed friendship / relationship developed. The witness told the Tribunal that the couple had the support of the family. As the relationship continued to develop, they subsequently became engaged and in April 2013 married in Sudan. Following the marriage Ms Elawad claims that her brother, the review applicant, commenced the visa application process for the visa applicant to join him in Australia. Ms Elawad further informed the Tribunal that her brother has taken care of the visa applicant financially and hopes that soon her brother and wife will be reunited. Ms Elawad provided no further evidence to the Tribunal and the Tribunal thanked her for her contribution to the hearing and the call ended. The Tribunal found Ms Elawad to be a credible witness.

30. Based on the evidence, the Tribunal is satisfied the couple were married to each other under a marriage that is valid for the purposes of the Act. However, based on the limited oral evidence at hearing and the lack of supporting physical evidence the Tribunal is not satisfied the couple have a mutual commitment to a shared life as a married couple to the exclusion of all others, that the relationship between them is genuine and continuing and that they do not live separately and apart on a permanent basis.

31. Based on the above the Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

32. Therefore, the visa applicant does not meet cl.309.211 and cl.309.221.

33. For the reasons above, the visa applicant does not satisfy the criteria for the grant of the visa.

    DECISION

34. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    M, Edgoose
    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).