SOLOMON (Migration)

[2020] AATA 5389

SOLOMON (Migration) [2020] AATA 5389 (21 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr JOSEPH SOLOMON

VISA APPLICANT:  Mrs LUBNA ALMOHAMMAD

CASE NUMBER:  1808220

DIBP REFERENCE(S):  OSF2017/007963

MEMBER:Hugh Sanderson

DATE:21 October 2020

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 of Schedule 2 to the Regulations; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 21 October 2020 at 2:35pm

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – evidence of review applicant’s earlier divorce – rapid development of the relationship – regular travel to Lebanon – child of the relationship – DNA testing for paternity – money transfers – international travel restrictions – photos of social activities – decision under review remitted  

LEGISLATION

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

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 14 March 2018 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 12 October 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).

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the delegate was not satisfied the visa applicant was the spouse, as defined in s.5F of the Act, or the de facto partner, as defined ins.5CB of the Act, of the review applicant.

   Background

4. The review applicant was born in Lebanon and is currently 52 years old. He is an Australian citizen. He has previously been married on three occasions. His last wife was Eman Shallouf who he married on 19 January 2015. He sponsored her for a Partner visa. This application was refused by the Department as the delegate was not satisfied the parties were in a genuine and continuing relationship. The review applicant applied for a review of that decision before the Tribunal (differently constituted). On 27 January 2017 the review applicant withdrew the review application and the matter was finalised. In the current application, he claimed that he had divorced Ms Shallouf, but failed to provide the date of the divorce or any divorce papers.

5. The review applicant has previously been known as Youssef Al Mohamad. He changed his name in Australia. He apparently still uses the name of Youssef Al Mohamad in Syria and Lebanon.

6. The visa applicant is a citizen of Lebanon and is currently 30 years old. She was previously married and divorced husband in March 2016. Her parents and five siblings all reside in Lebanon.

7. It was claimed the parties were introduced to each other in December 2016 as the review applicant is the cousin of the visa applicant’s father. It was claimed the parties were engaged to each other on 18 January 2017, before the visa applicant returned to Australia on 21 January 2017. They were married in Lebanon by proxy on 20 September 2017.

8. The delegate who considered the application noted the following:

   ·There was little information as to the financial aspects of the relationship;

   ·The review applicant purchased property in Lebanon and it was claimed the parties planned to reside there when the review applicant was in Lebanon;

   ·Evidence had been provided of the parties living together in hotels in Lebanon;

   ·Photos provided of the parties together provided only limited information of any social aspects of the relationship;

   ·There was limited information of any social recognition by friends and family of the relationship;

   ·The claimed development of the relationship between the parties was extraordinarily quick with the parties committing to the relationship less than a month after having first met;

   ·The review applicant was claiming to have commenced the relationship with the visa applicant while still sponsoring his former wife; and

   ·The review applicant had sponsored his then wife for a Visitor visa one month before commencing a relationship with the visa applicant.

9. Taking these matters into account, the delegate was not satisfied that the parties were in a genuine and continuing relationship or had a mutual commitment to a shared life to the exclusion of all others. The delegate was concerned that the review applicant had not provided divorce certificates for all of his previous relationships, and in particular for his divorce of Eman Shallouf. The delegate found the visa applicant did not meet the criteria in cl.309.211 and refused the application.

   Information to the Tribunal

10. The review applicant provided further material to the Tribunal including the following:

    ·Evidence of the parties staying together in Lebanon;

    ·Numerous photos of the parties together with various friends and relatives in Lebanon;

    ·Evidence of money being sent by the review applicant and the visa applicant;

    ·Evidence of the visa applicant’s applications for a Subclass 600 Visitor visa;

    ·Psychological assessment of the review applicant;

    ·Birth certificate of the parties’ child, Hassan Solomon, born 13 August 2020;

    ·Evidence of the review applicant’s regular travel to Lebanon and spending time with the visa applicant;

    ·Divorce Statement from the Syrian Arab Republic stating the review applicant divorced Eman Shallouf on 23 July 2017; and

    ·Divorce Statement from the Syrian Arab Republic stating that the review applicant divorced Handeel Ghazi on 22 November 2011.

11. At the suggestion of the Tribunal, the parties had DNA testing to establish the paternity of Hassan. The report from Sonic Genetics dated 19 October 2020 found that the review applicant was almost 100% likely to be the father of Hassan.

12. In light of the further information provided to the Tribunal and the fact that the parties may have a child, the Tribunal has proceeded to a decision without the need for a hearing.

13. The review applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the visa applicant is the spouse, as defined in s.5F of the Act, of the review applicant.

    Whether the parties are in a spouse or de facto relationship

16. 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.

17. ‘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?

18. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The review applicant has now provided his divorce certificate showing that he divorced his last wife, Eman Shallouf, on 23 July 2017. He was, therefore, single at the time he married the visa applicant. The Tribunal finds that the marriage between the review applicant and visa applicant was in accordance with Lebanese law. 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?

19. The review applicant has regularly been sending money to the visa applicant in Lebanon. He purchased the property in Lebanon to enable him to live with the visa applicant and his child, now that he has been born, when he has been in Lebanon. The current international travel restrictions have prevented the review applicant from travelling to Lebanon to be with the visa applicant and his child.

20. As the parties live in separate countries, it is not surprising that there is only limited information as to the financial aspects of the relationship. Despite this, the Tribunal is satisfied that the review applicant is providing financial support to the visa applicant as well as providing her home. This contribution by the review applicant is indicative of the parties being in a genuine and continuing relationship and having a commitment to a shared life as husband and wife to the exclusion of all others.

21. The review applicant has travelled regularly to Lebanon to be with the visa applicant. They have lived together in hotels or in the review applicant’s apartment. The arrangements when living together are indicative of the parties having established a household and sharing household chores.

22. Again, the evidence of the establishment of a household is limited due to the fact that the parties live in separate countries. Despite this, the information which has been provided and the time the review applicant has spent living with the visa applicant in Lebanon supports a finding that the parties are in a genuine and continuing relationship and have a mutual commitment to a shared life as husband and wife. Further, this supports a finding that the parties intend to live together.

23. The parties have provided numerous photos of themselves together socialising with friends and relatives in Lebanon. Statements have been provided by friends and family members attesting to the fact that they represent themselves as being married to each other and that their relationship is known and accepted by them. The parties have undertaken numerous social activities together in Lebanon.

24. The parties now have a child together and the paternity of the visa applicant’s child is acknowledged by the review applicant and his family as his.

25. The Tribunal is satisfied that the parties represent themselves as being married to each other and that this relationship is recognised by their friends and family as genuine. They have undertaken numerous social activities together and have planned future social events. The social aspects of the relationship indicate the parties are in a genuine and continuing relationship and have a mutual commitment to a shared life as husband and wife to the exclusion of all others.

26. The most important current aspect of the relationship between visa applicant and the review applicant is that they have a child together. DNA testing has established that the review applicant is the father of the visa applicant’s child. The fact that they have had a child together indicates the parties consider their relationship as long-term as well as indicating the degree of emotional support and companionship they provide to each other.

27. Although the commencement of the relationship was extraordinarily quick, the fact that the parties are related in part explains why the parties were willing to commit to a relationship after having met each other only shortly before they committed to their relationship. The fact that the review applicant was, at the time he was claiming to commence his relationship with the visa applicant, still sponsoring his then wife for a Partner visa significantly calls into question his genuineness in relation to both relationships.

28. Despite these concerns, the fact that the parties have a child together must be given significant weight when considering whether the parties are in a genuine and continuing relationship and have a commitment to a shared life as husband and wife to the exclusion of all others. This, together with the fact that the review applicant has travelled regularly to be with the visa applicant in Lebanon, and the other matters referred to above leads the Tribunal to conclude that the parties are in a genuine and continuing relationship. The Tribunal finds the parties have a mutual commitment to a shared life as husband and wife to the exclusion of all others and that they intend to live together.

29. 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. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

30. 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

31. 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.

    Hugh Sanderson
    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).