Saadie (Migration) - [2024] ARTA 862

Saadie (Migration) [2024] ARTA 862 (19 November 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Hind Saadie
Visa Applicant:  Mr Ahmad Abdel Karim
Respondent:  Minister for Home Affairs
Tribunal Number:  2424710

Tribunal:General Member Kate Malyon
Place:Sydney
Date: 19 November 2024
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; and,
·cl 309.221 of Schedule 2 to the Regulations.

I, General Member Kate Malyon, certify that this is

the Tribunal’s statement of decision and reasons.
Statement made on 19 November 2024 at 3:00 pm
CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – hearing expedited – genuine and continuing relationship – validly married in home country months being introduced and days after meeting in person – limited financial, social and household aspects of relationship while living in different countries – cultural expectations of husband (visa applicant) as financial provider – security and economic conditions in visa applicant’s home area – offers of employment in Australia – review applicant’s physical and mental health and sole parental responsibility for child from previous marriage – consistent oral evidence, statutory declarations, extensive documentation, supporting statements and detailed submission – satisfactory explanations for inconsistent evidence – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5F(2), 65
Migration Regulations 1994 (Cth), r 1.15A(2), (3), Schedule 2, cls 309.211(2), 309.221

CASES
He v MIBP [2017] FCAFC 206
Jayasinghe v MIMA [2006] FCA 1700
Re MILGEA and Dhillon [1990] FCA 144
Singh v MIEA [1996] FCA 1429

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
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 11 June 2024 to refuse to grant the visa applicant a Partner (Provisional) (Class UF) Subclass 309 visa under s 65 of the Migration Act 1958 (the Act).
The visa applicant, Lebanese national Ahmad Abdel Karim, applied for the visa on 31 December 2022 on the basis of his relationship with the sponsor, Australian citizen Miss Hind Saadie. At that time, Class UF contained only one subclass: Subclass 309 Partner (Provisional). Criteria for the grant of this visa are set out in Part 309 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
The delegate refused to grant the visa on the basis that Mr Abdel Karim did not satisfy

cl 309.211 and cl 309.221 of Schedule 2 to the Regulations. Whilst accepting that Mr Abdel Karim and Miss Saadie (hereinafter referred to as the couple) are married, the delegate was not satisfied Mr Abdel Karim had demonstrated that he is the ‘spouse’ of the…

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 Saadie (Migration)

Details

AGLC: Saadie (Migration) [2024] ARTA 862
Case: [2024] ARTA 862
Decision Date: 19 November 2024

CaseChat Overview and Summary

Miss Saadie, an Australian citizen, has applied for a Partner (Provisional) (Class UF) visa on behalf of Mr Abdel Karim, her Lebanese husband. The Tribunal was required to determine whether the relationship between Miss Saadie and Mr Abdel Karim was genuine and continuing at the time of the visa application and at the time of the Tribunal’s decision. The Tribunal found that the evidence presented by the couple was consistent and compelling, providing satisfactory explanations for any inconsistencies that arose. Given the additional evidence available to the Tribunal, including oral testimony and extensive documentation, the Tribunal concluded that the matter should be remitted for reconsideration by the Minister.

The key legal issue in this case was whether Mr Abdel Karim and Miss Saadie were in a genuine spousal relationship at the time of the visa application and at the time of the Tribunal's decision. The Tribunal considered the relevant provisions of the Migration Act 1958 and the Migration Regulations 1994, which set out the criteria for a Subclass 309 (Partner (Provisional)) visa. The Tribunal found that the couple's evidence was consistent and clear, and that they had satisfactorily explained the circumstances of their relationship. The Tribunal acknowledged the limited financial, social, and household aspects of their relationship while living in different countries, but noted the couple's mutual commitment to a shared life and the cultural expectations of Mr Abdel Karim as a financial provider. The Tribunal also considered the security and economic conditions in Mr Abdel Karim's home area, as well as offers of employment in Australia.

The Tribunal remitted the application for a Partner (Provisional) (Class UF) visa to the Minister for reconsideration, with the direction that Mr Abdel Karim meets the criteria for a Subclass 309 (Partner (Provisional)) visa. The Tribunal found that the couple's evidence was consistent, clear, and compelling, and that they had satisfactorily explained the circumstances of their relationship. The Tribunal acknowledged the additional evidence available to it, including oral testimony and extensive documentation, and found that the couple had a genuine and continuing spousal relationship. The Tribunal directed the Minister to reconsider the application in light of the additional evidence and findings.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. It acknowledges that it has significantly more information than that which was available to the delegate at the time of their decision, in particular, oral evidence at the hearing as well as the extensive indexed and paginated documentation submitted prior to the hearing. It also notes that, as confirmed by the couple at the hearing, they did not have the benefit of any professional advice when Mr Abdel Karim lodged his Subclass 309 Partner visa application. Background The review applicant Miss Saadie is a 36-year-old Australian citizen who was born in Australia of parents with a Lebanese background. She married her first husband, Lebanese national Nouhad Chakouch, on 18 October 2008 and sponsored his residence in Australia as the holder of a Subclass 820 visa application. However, Miss Saadie divorced her first husband on 11 February 2016 as confirmed by the Divorce Order issued by the Federal Circuit Court of Australia provided to the Department. Miss Saadie has one child from her first marriage, a son named Nabil Chakouch who was born on [Date]. The visa applicant Mr Abdel Karim is a 38-year-old Lebanese national. Although in his interview on 14 June 2023 with a case officer he made reference to being briefly engaged in 2019 to an Australian woman - Amina Kanj - for about a month, he clarified later in the interview that he was really just dating her and they did ‘not sign any book’. After dating Amina Kanj for a month, Mr Abdel Karim told the Tribunal that they broke up. In her interview with the case officer, Miss Saadie stated she was aware that her husband had briefly dated Amina Kanj. In the circumstances, the Tribunal accepts that Mr Abdel Karim has not disclosed any previous spousal or de facto relationships as those terms are defined in the Regulations. Both Mr Abdel Karim and Miss Saadie stated in the application that they were introduced through Mr Abdel Karim’s younger sister Fatima Abdel Karim who lives in Sydney. The opportunity arose when Mr Abdel Karim’s mother Wadha Arabi Abbas was visiting Australia in 2022 for a post-COVID-19 pandemic catchup with her daughter Fatima Abdel Karim when the Australian and Lebanese borders reopened. Fatima Abdel Karim took her mother Wadha Arabi Abbas to meet up with Mr Amine Kamal El-Dine, who comes from the same village in Lebanon as Mr Abdel Karim and is a good friend of his. Coincidentally, Amine Kamal El-Dine is married to Miss Saadie’s sister Noura and so Miss Saadie also happened to be at the get-together. Fatima Abdel Karim asked Miss Saadie if she would be happy to talk to her brother Mr Abdel Karim. Miss Saadie gave Fatima Abdel Karim her phone number and Mr Abdel Karim called her for the first time on 15 June 2022. They talked for about 4 months on a regular basis and it became increasingly apparent to the couple after just 2 months that their relationship had become deeper. As explained by Mr Abdel Karim, he made it clear from the outset that he was seeking marriage as things were tough in Lebanon. Miss Saadie independently confirmed this information to the Tribunal as she, too, was looking for a kind person to spend the rest of her life with and to have someone to share taking responsibility for her son Nabil following her divorce from her first husband. After casual chats for a couple of months, the couple really connected and started to talk about living together.

Evidence

Evidence Before The Court

After the wedding, the couple lived at Mr Abdel Karim’s family’s home for a fortnight before Miss Saadie returned to Australia to look after her son. On 15 August 2023, she went to live in Lebanon with her husband for 3½ months and was accompanied by her son Nabil Chakouch. CONSIDERATION OF CLAIMIS AND EVIDENCE The issue in the present case is whether Mr Abdel Karim and Miss Saadie were in a genuine spousal relationship both at the time of application and at the time of this decision. Relevant provisions of the Act and the Regulations referred to in this decision are set out in the Attachment to the decision. In making its decision, the Tribunal has regard not only to information in the Department and Tribunal files but also oral evidence at the hearing. The Tribunal acknowledges that Mr Abdel Karim’s visa application was lodged on 31 December 2022 and that the review application was lodged with the Tribunal on 24 July 2024 following the delegate’s refusal on 11 June 2024. It also notes that the Tribunal has prioritised processing applications for persons affected by the ongoing conflict in the Middle East and that since 19 October 2023 the Government has advised Australians not to travel to Lebanon due to the volatile security situation and the risk of it deteriorating further.[3] The Tribunal has had the benefit of receiving substantially more evidence than that which was available to the delegate, including oral evidence at the hearing as well as the documentation submitted by the representative prior thereto.[3] Ibid Having regard to the extensive evidence provided, the Tribunal finds that the couple gave wholly consistent oral evidence regarding the circumstances in which they met, the nature of their relationship and their living arrangements when they lived together in Lebanon for 3 weeks following their marriage there and for 3½ months from 15 August 2023. Oral evidence from Miss Saadie and Mr Abdel Karim was given in an open and forthright manner, and is consistent with documentation previously provided to support Mr Abdel Karim’s Subclass 309 visa application. The Tribunal acknowledges Miss Saadie’s reluctance to give oral evidence given her depression, anxiety as well as stress and the other medical conditions confirmed by Dr Tashnim Harun of the Ayar Medical Centre in Chester Hill in the signed letter dated 7 November 2024 provided prior to the hearing. However, it notes she proactively engaged with the Tribunal and had the benefit of evident support from her close family members who also attended the hearing. The delegate expressed concern regarding the rapid development of the couple’s relationship, the overall absence of documentation to address any of the legislative requirements and a number of inconsistencies arising from the interview conducted with Mr Abdel Karim having regard to other information lodged with the Department. However, the parties were able to satisfactorily explain to the Tribunal during the course of the hearing the circumstances that led to their initial communication with each other, their forming a relationship and then committing to their marriage before Miss Saadie travelled to Lebanon for their wedding. The Tribunal found the couple’s evidence to be consistent, clear and compelling. Are the parties in a spousal relationship?

Decision

Reasons for decision

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 The Tribunal remits the application for a Partner (Provisional) (Class UF) visa for reconsideration, with the direction that the visa applicant Mr Abdel Karim meets the following criteria for a Subclass 309 (Partner (Provisional)) visa:·cl 309.211 of Schedule 2 to the Regulations; and, ·cl 309.221 of Schedule 2 to the Regulations.Kate MalyonGeneral MemberDate(s) of hearing: 14 November 2024Representative for the Applicant: Mr Noah Ali KhoramiATTACHMENT - Extracts from Migration Act 1958 and Migration Regulations 1994Migration Act 1958 …5F Spouse(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.(2) For the purposes of subsection (1), persons are in a married relationship if:(a) shoot they are married to each other under a marriage that is valid for the purposes of this Act; and(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and(c) the relationship between them is genuine and continuing; and(d) they:(i)live together; or(ii)do not live separately and apart on a permanent basis.(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.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).…Schedule 2 - Subclass 309 -- Partner (Provisional)309.1--Interpretation309.111 In this Part:"intended spouse" means the person referred to in subparagraph 309.211(3)(a)(i), (ii) or (iii).Note: eligible New Zealand citizen and guardian are defined in regulation 1.03, parent is defined in subsection 5(1) of the Act (also see regulation 1.14A), de facto partner is defined in section 5CB of the Act (also see regulation 1.09A), and spouse is defined in section 5F of the Act (also see regulation 1.15A).309.2 - Primary criteria309.21 - Criteria to be satisfied at time of application309.211 (1) The applicant meets the requirements of subclause (2) or (3).(2) The applicant meets the requirements of this subclause if the applicant is the spouse or de facto partner of:(a) an Australian citizen; or(b) an Australian permanent resident; or(c) an eligible New Zealand citizen.(3) The applicant meets the requirements of this subclause if:(a) the applicant intends to marry:(i) an Australian citizen; or(ii) an Australian permanent resident; or(iii) an eligible New Zealand citizen; and(b) the intended marriage will, if it takes place, be a valid marriage for the purposes of section 12 of the Act.Note: If the applicant is an applicant referred to in subclause 309.211(3), the marriage must have taken place before the applicant can be granted a visa of this subclass: see clause 309.224.309.212 (1) The spouse, de facto partner or intended spouse of the applicant is not prohibited by subclause (2) from being a sponsor.(2) The spouse, de facto partner or intended spouse is prohibited from being a sponsor if:(a) the applicant is a male person; and(b) the spouse, de facto partner or intended spouse is a woman who was granted a Subclass 204 (Woman at Risk) visa within the 5 years immediately preceding the application; and(c) on the date of grant of that visa:(i) the applicant was a former spouse or former de facto partner of that woman, having been divorced or permanently separated from that woman; or(ii) the applicant was the spouse or de facto partner of that woman and that relationship had not been declared to Immigration.309.213 (1) If the applicant is an applicant referred to in subclause 309.211(2), the applicant is sponsored:(a) if the applicant's spouse or de facto partner has turned 18--by that spouse or de facto partner; or,(b) if the applicant's spouse has not turned 18--by a parent or guardian of that spouse who:(i) has turned 18; and(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.(2) If the applicant is an applicant referred to in subclause 309.211(3), the applicant is sponsored:(a) if the applicant's intended spouse has turned 18--by that intended spouse; or(b) if the applicant's intended spouse has not turned 18--by a parent or guardian of that intended spouse who:(i) has turned 18; and(ii) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.…309.22 - Criteria to be satisfied at time of decision309.221 The applicant continues to satisfy the criterion in clause 309.211.309.222 The sponsorship referred to in clause 309.213 has been approved by the Minister and is still in force.Note: Regulations 1.20J, 1.20KA and 1.20KB limit the Minister's discretion to approve sponsorships.309.223 In the case of an applicant who meets the requirements of subclause 309.211(2), the applicant continues to be the spouse or de facto partner of the person referred to in paragraph 309.211(2)(a), (b) or (c) who was the applicant's spouse or de facto partner at the time of the application.309.224 If the applicant is an applicant referred to in subclause 309.211(3), the marriage referred to in that subclause has taken place and the applicant continues to be the spouse of the intended spouse.309.225 The applicant:(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009, 4020 and 4021 ; and(b) if the applicant had turned 18 at the time of application -- satisfies public interest criterion 4019.309.226 If the applicant has previously been in Australia, the applicant satisfies special return criteria 5001 and 5002.309.228 (1) Each member of the family unit of the applicant who is an applicant for a Subclass 309 visa is a person who:(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4007, 4009 and 4020; and(aa) if the person had turned 18 at the time of application, satisfies public interest criterion 4019; and(b) if the person has previously been in Australia, satisfies special return criteria 5001 and 5002.(2) Each member of the family unit of the applicant who is not an applicant for a Subclass 309 visa is a person who:(a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and(b) satisfies public interest criterion 4007, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion.309.229 If a person (in this clause called the additional applicant):(a) is a member of the family unit of the applicant; and(b) has not turned 18; and(c) made a combined application with the applicant-- public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant.oOOo

Ratio Decidendi

Legal Principle Established

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