Youssef (Migration)

[2017] AATA 934

Youssef (Migration) [2017] AATA 934 (6 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gergess Youssef

CASE NUMBER:  1610038

DIBP REFERENCE(S):  CLF2013/198335

MEMBER:Kate Timbs

DATE:6 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 06 June 2017 at 5:07pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Genuine and continuing spousal relationship – Compelling circumstances to waive the Schedule 3 requirements – Federal Magistrates Court remittal – Parties living separately – No plans to marry – Parties both committed to support ill parents separately – Limited financial interdependence

LEGISLATION

Migration Act 1958, ss 5CB, 5F, 65

Migration Regulation 1994, Schedule 2, cl 820.211, Schedule 3, Criterion 3001, r 1.15A

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant Mr Youssef a Partner (Temporary) (Class UK) visa under section 65 of the Migration Act 1958 (the Act).

2. Mr Youssef applied for the visa on 15 August 2013 based on his relationship with Ms Jessica Karen Vico, who is an Australian citizen. The delegate refused to grant the visa on 17 September 2014.

3. On 8 October 2014, Mr Youssef applied for review of that decision. On 26 November 2015, the Tribunal (differently constituted) heard the application. On 1 December 2015, it affirmed the decision under review.

4. On 4 May 2016, the Federal Magistrates Court ordered the Tribunal to reconsider the matter. The Tribunal heard the application for a second time on 25 October 2016.

   RELEVANT LAW

5. The relevant law is the Act and the Migration Regulations 1994. To be granted the visa, Mr Youssef must satisfy the relevant criteria in Part 820 of Schedule 2 to the Regulations.

6. The delegate found Mr Youssef did not satisfy the criteria in clause 820.211(2)(d) because there were no compelling reasons not to apply criteria in Schedule 3 to the Regulations. Mr Youssef did not meet criterion 3001 in Schedule 3 because he did not hold a substantive visa in the 28 days before he applied for the visa.

7. Mr Youssef must also satisfy the criteria that he is in a spouse or de facto relationship with Ms Vico when he applied for the visa (clause 820.211(2)) and that he continues to satisfy that criterion at the time of decision (clause 820.221). (Alternative criteria in those clauses are not relevant in his circumstances.)

8. At the second hearing, he gave evidence (discussed below) suggesting he did not have a spouse or de facto relationship with Ms Vico. After the hearing, the Tribunal wrote to Mr Youssef and explained that he might not satisfy clause 820.211 if it found that was the case and invited further information or comment. Mr Youssef did not respond to the letter.

9. To deal with his application for review, the Tribunal considered whether he and Ms Vico are spouses or de facto partners at the time of this decision.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Evidence considered

10. The Tribunal considered documents in the Department’s visa application file and those provided by Mr Youssef to the Tribunal before the first hearing. Mr Youssef gave evidence at the second hearing and the Tribunal listened to the recording of the first hearing.

    Whether Mr Youssef is in a spouse or de facto relationship

11. Among other things, the applicant and sponsor must be married to meet the definition of “spouse” in section 5F of the Act. Mr Youssef confirmed that is not the case and he and Ms Vico are not spouses at any relevant time.

12. To meet the definition of “de facto partner” in section 5CB of the Act, the applicant must be in a de facto relationship with the sponsor. That will be the case if:

    ·there is a mutual commitment to a shared life to the exclusion of all others;

    ·the relationship is genuine and continuing; and

    ·the couple live together, or do not live separately and apart on a permanent basis.  

13. When forming an opinion about those matters, the Tribunal must consider all of the circumstances of the relationship and, in particular, the financial and social aspects and the nature of the parties’ household and their commitment to each other (regulation 1.15A(3)).

    Background

14. When Mr Youssef applied for the visa, he stated he met Ms Vico in May 2012. He was living in Sydney and she was living in Southport. He said they spoke on the phone every day and developed a serious relationship in July 2013. He said she was caring for her mother and he drove to visit her sometimes and provided copies of air tickets showing she went to Sydney on occasion. He said they planned to marry.

15. He also provided a statement to the Department from Ms Vico that they planned to marry but could not be together at that time because she was caring for her mother.

16. At the first hearing, Mr Youssef told the Tribunal that they were not engaged and, at the second hearing, he said that they had no made plans to marry because of Ms Vico’s mother’s health.

    Nature of the households

17. Ms Vico said in her statement to the Department that, for religious reasons, they would not live together before they married. They have not married but Mr Youssef told the Tribunal she moved to Sydney and they lived together for about six months in 2013. He said they have lived apart since then.

18. They have no children and do not share household chores. Mr Youssef said they would continue to live apart indefinitely so that they can care for their parents who are both chronically ill.

19. They have not lived together during the last three years and they have no current plans to do so. The Tribunal infers they are living separately and apart on a permanent basis.

    Financial aspects of the relationship

20. There is evidence that Mr Youssef provided some financial assistance to Ms Vico in the past. However, at the second hearing, he said they do not share household expenses and they are not financially interdependent in any way.

    Social aspects of the relationship 

21. Mr Youssef told the Tribunal that friends who have known them a long time think of them as a couple and his father knows about the relationship.

22. He said he has very little contact with Ms Vico and they do jointly undertake social activities together with friends and family. Their families and associates would be aware they have lived separately and apart from each other for most of the time since they met and that they have no plans to live together or to marry. In that case, the Tribunal infers that they do not think of them as a de facto couple or as being engaged to each other.

    Nature of the commitment

23. Mr Youssef’s evidence is that he has had a relationship with Ms Vico since 2012 and started a committed relationship in 2013. In November 2015, he provided the Tribunal with copies of their text messages and an email from her stating they were still in a serious relationship and that he provided her with emotional support. She said they expected to marry at that time and had no plans because of her mother’s health problems.  

24. At the second hearing, Mr Youssef told the Tribunal the relationship is “not that strong” because they have little contact. He said he does not think of the relationship as over but he last saw her about eight months ago and that he does not speak to her often because she turns her phone off so that she can focus on caring for her mother. The Tribunal finds on that evidence that they do not now provide each other with company or emotional support.

25. Mr Vico did not provide evidence to the Tribunal at hearing or in response to the letter sent after the hearing. It has no evidence to suggest she currently sees herself as being in a continuing long-term relationship with Mr Youssef and their limited contact makes that unlikely. It is not satisfied that she intends to share his life with him in any capacity.

    Conclusion

26. The Tribunal has found the parties are living separately and apart on a permanent basis and is not satisfied that they have a continuing relationship or a mutual commitment to a shared life on the evidence available. In that case, they are not de facto partners at the time of this decision and Mr Youssef does not satisfy clause 820.221. For that reason, it will affirm the decision under review not to grant the visa.

    DECISION

27. The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.

    Kate Timbs
    Member