Zeidan (Migration)

[2024] AATA 654

Zeidan (Migration) [2024] AATA 654 (18 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Dolly Zeidan

VISA APPLICANT:  Mr Marwan Al Hariri

REPRESENTATIVE:  Mr Jamal Daoud (MARN: 1807265)

CASE NUMBER:  2217098

DIBP REFERENCE(S):  BCC2020/1628868

MEMBER:Moira Brophy

DATE:18 March 2024

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;

·cl 309.221 of Schedule 2 to the Regulations.

Statement made on 18 March 2024 at 9:02am

CATCHWORDS

MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine and continuing relationship – validly married – money transfers – plans to establish a joint household – social recognition of the couple – lengthy relationship – decision under review remitted  

LEGISLATION

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

CASES

He v MIBP [2017] FCAFC 206
Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Northrop, Wilcox and French JJ, 8 May 1990, unreported)

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 Home Affairs on 2 November 2022 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 27 May 2020 on the basis of his relationship with his 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 delegate was not satisfied the parties were in a genuine, ongoing and mutually exclusive relationship.

4. The review applicant (sponsor) appeared before the Tribunal on 28 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant, Mr Marwan Al Hariri, and from the son of the sponsor, Mr Milad Salloum.

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

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

   Background

7. The visa applicant is a 31-year-old male currently residing in Lebanon. He has declared no previous relationships. The visa applicant’s parents, two sisters and two brothers live in Lebanon.

8. The review applicant, Mrs Dolly Zeidan, is a 49-year-old female living in Sydney. She was previously engaged to George Abdallah in the period from 1 January 1995 to 10 January 1996. She was married to Mr Milled Salloum in the period from 29 June 2002 to 3 February 2016. There was one child of the relationship. The review applicant came to Australia on 9 June 1990. Her parents, one sister and one brother reside in Sydney.

9. At the time of the application, the parties stated they met on 11 January 2019 on Facebook. The communicated for a few months and the sponsor then travelled to Lebanon and the parties met in person at Jbeil on 17 May 2019. The parties committed to a long‑term relationship to the exclusion of all others on 18 June 2019, being the date they married.

   Tribunal proceedings

10. The issue in the present case is whether the visa applicant and the review applicant were in a genuine spousal relationship at the time of application and continue to be in a genuine spousal relationship at the time of this decision.

11. In making its findings, the Tribunal has considered documents contained in the Department and Tribunal files and oral evidence provided by the review applicant and the visa applicant.

12. The parties generally gave consistent evidence about how they met, and of their time living as part of one household in Lebanon. Their evidence was consistent as to the impact of the COVID‑19 pandemic on their relationship as they were not able to see each other. The Tribunal did have some concerns about whether the prime commitment on the part of the visa applicant was to gaining a visa to allow him to live in Australia, or to the relationship with the review applicant. Overall, the Tribunal was satisfied there was sufficient evidence to support a finding the parties were in a genuine and committed relationship.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Whether the parties are in a spouse or de facto relationship.

13. Clause 309.211(2) requires that, at the time the visa application was made, the visa applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. With limited exceptions that only apply in relation to a decision to grant or not grant a Subclass 309 visa made on or after 20 August 2022, the visa applicant must continue to be the spouse or de facto partner at the time of the Tribunal’s decision: cl 309.221. In the present case, the visa applicant claims to be the spouse of the review applicant who is an Australian citizen.

14. ‘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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

15. If the parties are validly married, they may meet the requirements of a spousal relationship but not a de facto relationship. There is nothing in the information before the Tribunal to cast doubt on the validity of the parties’ marriage on 18 June 2019 and it was not disputed by the delegate. Consequently, in the absence of any evidence to the contrary, the Tribunal finds that the parties are 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

16. The review applicant lives in Sydney with her son in a rented unit. She pays $650 per week in rent. She is in receipt of insurance monies of $300 per week from a workplace accident and she receives $250 per week from Centrelink. She supplements her income each week from her savings. She, her sister and her brother recently sold a home they owned for $1,000,000. They are using the sale proceeds to assist their parents with their living costs and to provide a savings buffer for their own living costs. The review applicant was injured while at work and she has undergone three surgeries on her neck and shoulders.

17. The visa applicant lives in Beirut. He lives alone in a rented house. The review applicant sends him money on a regular basis to assist with his costs.

18. The parties do not have a joint bank account.

19. They do not share day-to-day household expenses while in different countries, and each maintains their own bank accounts for day-to-day expenses. This is not unusual given the review applicant is in Australia and the visa applicant is in Beirut. They each had a good knowledge of the other’s finances.

20. The Tribunal places some weight on this aspect of the relationship as it is indicative of parties in a genuine and continuing relationship pooling their available resources despite living in different countries.

    Nature of the household

21. The Tribunal accepts that since the parties married in June 2019, the review applicant and visa applicant have lived together for around two months. The Tribunal accepts the parties stayed together as a couple during these periods when the review applicant was in Lebanon.

22. The parties gave consistent evidence as to the household arrangements during the periods they were together and about their plans to establish a joint household in Sydney at the unit in which the review applicant currently resides.

23. The Tribunal places significant weight on this aspect of the relationship given the periods of cohabitation since marriage.

    Social aspects of the relationship

24. At the time of application, the applicants provided statutory declarations (Form 888s) from three persons who knew the review applicant, and who had witnessed the efforts made by the parties to maintain their relationship. A further statutory declaration was provided to the Tribunal by the son of the review applicant attesting to the support the visa applicant provided to his mother.

25. The Tribunal accepts from the photographic evidence, the supporting documentation as to shared travels, the statements outlined above, and their oral testimony at hearing, that the parties have as a couple spent time with their family and friends in Lebanon, and they socialise within their community there as a married couple.

26. The Tribunal accepts on the evidence before it that the parties present to their family and friends as a married couple.

    Nature of the persons’ commitment to each other

27. Given the concerns raised by the delegate, the Tribunal carefully considered the evidence as to the nature of the commitment of both parties to the relationship. The Tribunal accepts the parties have known each other since January 2019, having met through mutual interests and their cultural background.

28. The Tribunal had some concerns as to the nature of the relationship. The Tribunal was concerned the visa applicant was motivated by his desire for a visa and the opportunity to live in Australia.

29. The Tribunal was mindful of consideration of motivation in Minister for Immigration, Local Government and Ethnic Affairs v Dhillon (Northrop, Wilcox and French JJ, 8 May 1990, unreported), where motivations for marriage have been restated as follows:

    ... people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as "community expectations". It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.

30. The decisions of the courts referred to above make it clear that it is inappropriate for a decision‑maker to draw conclusions as to the respective commitments of the parties to a marriage from a finding that the motivation for the wedding included the visa status of the parties. In the Tribunal’s view, as this case demonstrates clearly, it is particularly inappropriate to draw such conclusions without first interviewing the parties and putting any concerns as to their motivation to them. The Act and Regulations provide clear guidance as to the matters that decision-makers are to consider in assessing relationships for the purposes of a partner visa, and it is to these matters that regard must be had.

31. After carefully considering whether the evidence supported a finding that the motivation of the parties was in fact to gain a visa in the first instance, the Tribunal accepts given the timeline of the application that their primary commitment was to their relationship with each other, and that while a visa and the opportunity for the visa applicant to be able to come to Australia was a part of the equation, their commitment to each other was not dependent on the visa being granted.

32. Based on all the evidence, the Tribunal finds the parties have a commitment to each other consistent with them being in a spousal relationship.

33. Given the above findings, the Tribunal is satisfied that at the time the visa application was lodged and at the time of this decision, the parties are validly married, have a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that the relationship is genuine and continuing. The Tribunal finds that they intend to live together in Australia and that they therefore do not live separately and apart on a permanent basis.

34. Accordingly, the Tribunal finds that the visa applicant satisfies the definition of ‘spouse’ in s 5F(2)(a)–(d), and that the parties are in a spousal relationship.

35. The review applicant is an Australian citizen.

36. Given these findings, the Tribunal is satisfied that at the time the visa application was made, and at the time of this decision, the parties were and continue to be in a spousal relationship. The Tribunal finds that the visa applicant is the spouse of the review applicant and satisfies cl 309.211(2) and therefore cl 309.211. The Tribunal finds that at the time of decision, the visa applicant continues to satisfy cl 309.211.

37. Therefore, the visa applicant satisfies both cl 309.211 and cl 309.221.

    DECISION

38. 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;

    ·cl 309.221 of Schedule 2 to the Regulations.

    Moira Brophy
    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).