Souleyman (Migration)

[2019] AATA 3683

Souleyman (Migration) [2019] AATA 3683 (17 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Abderahman Yahya Souleyman

VISA APPLICANTS:  Miss Aicha Bichara
Mr Abdul Aziz Souleyman
Mr Yusif Souleyman
Mr Moussa Souleyman

CASE NUMBER:  1703872

DIBP REFERENCE(S):  BCC2016/3866581

MEMBER:Peter Vlahos

DATE:17 April 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction 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

Statement made on 17 April 2019 at 8:06am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) – Subclass 309 (Spouse (Provisional)) – genuine spousal relationship – photographs – genuine and continuing relationship – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), Schedule 2 cls 309.211, 309.221, r 1.15A(3)

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 15 February 2017 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 13 November 2016 on the basis of their 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the sponsor (the review applicant) does not meet the definition of spouse in s.5F of the Act or of de facto provided in section 5CB of the Act.

4. The review applicant appeared before the Tribunal on 27 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Miss Aicha Bichara, the visa applicant.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether at the time of application and at the time of decision the parties were in a genuine spousal relationship.

   Whether the parties are in a spouse or de facto relationship

8. 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 permanent resident

9. ‘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?

10. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. The Tribunal is satisfied that the parties married in Riyadh, Saudi Arabia on the 18 June 2012, evidenced by a marriage certificate dated 18 July 2012.[1] 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).

    [1] AAT File no. 1703872 Folio [181]

    Are the other requirements for a spouse relationship met?

11. The Tribunal has had the benefit of seeing material and evidence that was not provided to the delegate from the applicant. This information includes statutory declarations from third parties about the relationship, bank confirmations and statements of transaction.

    Financial aspects

12. The parties have provided written evidence in relation to their finances to the Tribunal.

13. The delegate was not satisfied that the parties had provided sufficient evidence regarding the financial aspects of the relationship, including evidence of any previous or ongoing pooling or financial resources or sharing of day-to-day household expenses. The delegate acknowledged that the primary applicant had provided some money transfer receipts from Western Union as evidence provided but the delegate placed moderate weight on this evidence.

14. At the hearing, the Tribunal asked the primary applicant to explain in detail how the financial aspects of his marriage to the applicant operated – though the two were at a considerable distance from each other. The applicant told the Tribunal that his wife and children are heavily dependent on his regular money transfers to live (day-to-day) in Saudi Arabia.

15. In order to assist his family and to meet their needs, the applicant transfers on a monthly basis AUD$600-700 via Western Union. The applicant submitted as evidence a number of transfer slips confirming his frequent and regular monetary assistance of his wife and family in Saudi Arabia.[2]

    [2] See AAT File no. 1703872 folio [170-176] – [127-133] Western Union money transfers

16. However, the Tribuanl finds that there is evidence of a financial relationship and mingling between the couple.

17. As noted above, the applicant has submitted Western Union confirmations of money transfers and statements of transaction, spoken about the reliance of his wife on these funds to run the household while in Saudi Arabia and this was confirmed in evidence by his wife when asked by the Tribunal. Moreover, the wife told of how she was solely dependent on her husband’s monthly money transfers to meet the demands and needs of the family. It was also confirmed for the Tribunal that while the applicant’s spouse was employed taking care of children at a local primary school, the money earnt working were of little assistance to her and family without the monthly payments provided to her by the applicant. Overall, the parties gave consistent evidence on these matters.

18. Whilst both the applicant and his wife admitted that as a couple they had not opened a joint bank account, for the reasons that each of them were in different parts of the globe, the evidence before the Tribunal indicates that the two considered a joint financial relationship existed between them and more to the point, the applicant’s wife and his family were primarily reliant on his provided regular monthly income contribution for their subsistence. The applicant without fail provided that contribution and considered it an on-going obligation which in the evidence provided to the Tribunal he never neglected.

19. The Tribunal gives weight to the financial aspect of the relationship.

    Nature of the household

20. In assessing the genuine nature of a relationship, consideration must be given to all circumstances of a relationship including any joint responsibility for the care and support of children; living arrangements of the parties and any sharing of responsibility for housework.

21. The delegate in his decision accepted that the applicant and his spouse have been residing in separate countries for the past five years and that there was no recent information provided to the delegate to consider. The delegate, considered the living arrangement of the parties prior to the applicant’s migration to Australia. The delegate noted that the applicant and spouse resided together for a year prior to the applicant’s leaving Saudi Arabia. Also, requests were made by the delegate for historical photographs of the applicant and his spouse and other members of their family. However, only two photos were provided to the delegate and there were considered as minimal evidence to demonstrate that the parties shared a household.[3]

    [3] See Department of Immigration & Border Protection delegate’s decision  at p.8, ibid AAT File folio [34]

22. At the hearing, the applicant provided evidence that both he and his spouse had a joint responsibility - Mr Abdul Aziz Souleyman (DOB 2012), Mr Yusif Souleyman (DOB 2002) and Mr Moussa Souleyman (DOB 1998). The applicant told the Tribunal that he provided monthly instalments of money for the family’s expenses and need which was confirmed also by the applicant’s wife. The applicant also provided numerous photographs of the applicant’s and his wife’s wedding and other photographs which recorded the family members partaking at various recreational activities.

23. The Tribunal accepts that while the applicant was in Saudi Arabia that the parties lived together, and then separated when the applicant sought to migrate to Australia. The Tribunal also gives regard to the evidence of the parties that they are in regular contact with each other on a daily basis and in this contact the parties exchange support, advice and mutual decisions concerning the day-to-care concerns of their family unit. The Tribunal also gives regard that the parties have displayed in their evidence before the Tribunal that have and are jointly taking care of children (two from his previous marriage and one child born[4] to the applicant and his wife).

    [4] See birth certificate extract in AAT File Folio [184]

24. The Tribunal accepts that the parties have while both were in Saudi Arabia had lived together , on or around the time they were married and would have continued to have lived together as a married couple, if the applicant had not migrated to Australia. Even so, the applicant and his spouse continued to have regular contacts between themselves (as evidenced by numerous calls recorded on the AAT File) and the applicant provides monthly financial assistance to his wife for the family’s needs. Without such assistance provided by the applicant on a regular basis, the family unit would have difficulties to subsist. The Tribunal’s findings are based on the oral evidence of the parties before the Tribunal and other documents provided and photographs which were submitted which were adequately described.

    Social aspects

25. In assessing the social aspects of the relationship, the delegate considered social interactions, the way the applicant and his wife represented the relationship to others and the level of recognition of the relationship by friends and family. In the delegate’s opinion, the two statutory declarations submitted from the applicant’s friend were given less relevance because the applicant’s friends (as the delegate described them) had not met the applicant’s wife in person. The applicant told the Tribunal that regardless of what the delegate had found, all of his friends know that he is married and is in regular contact with his wife and children in Saudi Arabia. His friends also know that the applicant is on a monthly basis providing his family with money so as to enable them to live as best they could.

26. The Tribunal noted that amongst the statutory declarations provided there was one in name of Mr Mahamat Younous Abderahman who is a cousin of the applicant’s spouse and deposes that he knows about her marriage and that the ‘couple’ have had a child together named ‘Abdullaziz’. The Tribunal has no reason or evidence to the contrary - not to accept this deponent’s evidence provided as a family member having knowledge of the couple being married.

27. There are also photographs on file of the parties in various social situations with their young child and others.

28. I find there is social recognition of the marriage and give weight to this aspect of the application.

    Nature of person’s commitment to each other

29. The couple have known each other since their engagement in 2010 and were married on 8 October 2011- overall period of eight years.  The parties met at a function held at the wife’s uncle’s home in March 2010. Thereafter, after further meetings respecting the social mores and nuances of a Muslim society the two became and engaged and married and have remained married since 2011. The couple also have a child together.

30. Having considered the oral evidence and written evidence of the parties as provided to the Tribunal, the Tribunal concludes there is despite the distance between the two – each living in different countries, a close communication between them as far as it concerns the issues of their family. Daily life is discussed in detail between them and the mutual care is observed by what the Tribunal was told in evidence at the hearing.

31. The Tribunal noted that the relationship has had its challenges, from cultural differences and societal discrimination. Nonetheless, constant communication and companionship is evident by the in attention (even at great distance) that one provides to the other concerning issues which concern the welfare of children and the family day-to-day living needs.

32. There is in the Tribunal’s opinion, an awareness of each other’s needs –the applicant is told the Tribunal that he would constantly make himself available at all times of the night to receive the telephone calls of his wife trying to seek his advice about an issue concerning the children which is in keeping with a genuine and committed spousal relationship.

33. The couple support each other in their daily life and have solid plans for making a home for themselves and their family once they are re-united in Australia.

    The Tribunal finds there is evidence of long term commitment to a spousal relationship.

34. Having regard to the financial aspects, the nature of the household, the social aspects and the nature of the persons’ commitment to each other, the Tribuanl considers these findings together considered together demonstrate that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that they show that the relationship is genuine and continuing. The Tribunal is satisfied that the parties are in a genuine spousal relationship and that therefore meet the requirements of s.5F for a spousal relationship.

    
    
    

35. 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 the parties were in a spousal relationship.

36. Therefore the visa applicant meets cl.309.211 and cl.309.221.

37. 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

38. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction 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

    Peter Vlahos
    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).