[2003] MRTA 3059

CATCHWORDS: Review of visa refusal - Subclass 820 - genuine relationship

REVIEW APPLICANT: Mr Abdallah Ahmad T. EL-JENDI

DECISION: The Tribunal remits the application made by the visa applicant for a Partner (Temporary) (Class UK) visa to the Department of Immigration and Multicultural and Indigenous Affairs, for reconsideration with the direction that the visa applicant is to be taken to have met the following criteria for a subclass 820 (Spouse) visa:

1. This is an application for review of a decision made by a delegate of the then Minister for Immigration and Multicultural Affairs (the delegate) to refuse to grant a Partner (Temporary) (Class UK) visa. Mr Abdallah El-Jendi (the visa applicant), a national of Belize, born in Lebanon on 2 February 1972, applied for permanent residence on spouse grounds on 17 October 2000.

2. The visa application form completed by the applicant incorporated an application for a permanent visa, a Partner (Residence) (Class BS) visa, which normally cannot be granted until 2 years have elapsed since the lodgement of the application, and an application for a temporary visa, a Partner (Temporary) (Class UK) visa, which can be granted immediately, to permit stay until a decision is made on the permanent visa. This process is intended to test whether the relationship is continuing, 2 years after the visa application, before permanent residence is confirmed. The delegate's decision to refuse to grant the visa was made on 13 September 2001.

3. The visa applicant lodged an application for review with the Tribunal on 11 October 2001. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

4. The visa applicant lodged one application for review form and paid one fee and there is some question as to which of the two decisions is to be reviewed by the Tribunal - the decision to refuse to grant a Class UK visa or the decision to refuse to grant a Class BS visa. The obvious intention behind the application for review is to seek a review of whatever decisions prevented the visa applicant from gaining residence on spouse grounds, and the necessary first step is the review of the decision to refuse to grant the Class UK visa. The Tribunal is therefore proceeding on the basis that this review is in respect of the decision to refuse to grant the Class UK visa.

5. The Migration Act 1958 (the Act) and the various Regulations made under that Act, principally the Migration Regulations 1994 (the Regulations), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the Tribunal is bound by the Act, the various Regulations and written directions issued by the Minister under section 499 of the Act. Some matters may be the subject of policy, as found in publications such as the Procedures Advice Manual 3 (PAM3) and the Migration Series Instructions (MSIs), produced by the Department of Immigration and Multicultural and Indigenous Affairs (the Department). The Tribunal is required to have regard to policy and apply it unless there are cogent reasons for departing from policy.

6. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

7. The criteria and policy immediately relevant to this review are:

Regulation 1.15A of the Regulations

Regulation 1.20J of the Regulations

Part 820 of Schedule 2 to the Regulations

Procedures Advice Manual 3: Regulation 1.15A - Interpretation - Spouse

Procedures Advice Manual 3: Division 1.4B - Sponsorship and Nomination: Spouse, Prospective Spouse and Interdependency visas

Procedures Advice Manual 3: Schedule 2 - Spouse - Visa 820

Nassouh v Minister for Immigration and Multicultural Affairs [2000] FCA 788

Bretag v Minister for Immigration, Local Government and Ethnic Affairs (Unreported, Federal Court, O'Loughlin J, 29 November 1991)

8. The Tribunal generally has regard to the Regulations as they stood at the time of a visa application. However, subsequent amendments may apply in some circumstances.

9. The Tribunal has had regard to oral evidence given at a hearing held on 2 May 2003 and to documents contained on Tribunal case file N01/05923 and Departmental case file CLF2000/052537.

10. The visa applicant entered Australia on 4 March 2000 on a subclass 676 (tourist - short stay) visa. On 22 June 2000, the visa applicant was granted a subclass 686 (tourist - long stay) visa. On 5 September 2000, the visa applicant was granted another subclass 686 (tourist - long stay) visa. The visa applicant's visa expired on 16 October 2000. The visa applicant lodged the Application for Migration on 17 October 2000 and since then the visa applicant has held a bridging visa granted on the basis of the application for a visa the subject of this review. The visa applicant has not travelled outside Australia in this time.

11. The visa applicant was nominated in connection with the visa application by Mrs Eman Halabi (the nominator), an Australian citizen, who was born in Camden on 22 February 1982.

12. The visa applicant claims to have met the nominator in Sydney on 1 June 2000 and that they married in Sydney on 4 July 2000. The evidence provided in support of this includes:

13. The delegate stated that the visa was not granted because the Department did not receive a response to a request for further information within the time limit. The delegate stated that there was insufficient information on file to conclude that the marital relationship is continuing.

14. An envelope stamped 14 September 2001 was sent to the Department. It contained further evidence in support of the application, including:

* 41 photographs of the wedding, of which 13 photographs include up to 6 different guests.

* A Residential Tenancy Agreement dated 3 February 2001, for the Blairmount address, in the names of the visa applicant, the nominator and the nominator's father.

* An Advice of Lodgement of Bond in joint names, for the Blairmount address, dated 2 March 2001.

* A bill dated 9 February 2001 addressed to `Mrs E Jendi' at the Blairmount address.

* A bill dated 21 February 2001 addressed to `Mrs Eman Jindi' at the Blairmount address.

* A bill dated 15 March 2001 addressed to `Mrs E Halabi' at the Blairmount address.

* A bill dated 22 March 2001 addressed to `Miss E Halabi' at the Blairmount address.

* 2 receipts in joint names, dated 24 February 2001, for a blender and a can opener, and a VCR.

* A letter dated 16 August 2001 from an Obstetrician/Gynaecologist stating that the nominator is pregnant, and the expected date of delivery is 19 February 2002.

* An undated statement from the visa applicant's cousin in support of the relationship.

* A statutory declaration dated 12 May 2001 from the nominator's brother's wife in support of the relationship.

* A statutory declaration dated 29 August 2001 from the visa applicant in support of the relationship.

* A statutory declaration dated 29 August 2001 from the nominator in support of the relationship.

15. The visa applicant stated when lodging the application for review that the relationship is genuine and continuing. The visa applicant submitted the following documents supporting his application for a fee waiver:

* 2 bank statements for an account in joint names covering the period 20 January 2001 to 19 April 2001.

* A photocopy of 2 bank statements for an account in joint names covering the period from 20 April 2001 to 19 October 2001.

* A receipt dated 15 September 2001 in joint names for rent paid on the Blairmount address.

* A photocopy of the nominator's health care card, listing the visa applicant as a dependant.

* Other documents relating to the visa applicant's financial status.

16. The visa applicant and nominator gave oral evidence to the Tribunal on 2 May 2003. They gave evidence indicating an awareness of each other's lives. They have one child together and the nominator is currently pregnant. Unfortunately, she was pregnant with twins but miscarried one of the twins recently and was hospitalised for some period.

17. The couple enjoy socialising with others, going to the movies and have travelled in Australia with their daughter. They independently gave evidence of recent holidays spent in Melbourne together.

18. The couple maintain joint finances through two joint banks accounts into which the visa applicant's wages and payments to the nominator from Centrelink are paid.

19. At the time the visa application was lodged, Class UK contained the following subclasses: Subclass 820 (Spouse), and Subclass 826 (Interdependency). The only subclass in respect of which any claims have been advanced is subclass 820. There is no evidence to suggest that the visa applicant meets key criteria for the other subclass.

20. The criteria for a subclass 820 visa, relevant to this review, are set out in subclauses 820.211(2) and 820.221(1).The criteria can be posed as the following questions:

* Was the visa applicant the spouse of the nominator at the time of the visa application?

* Was the nominator an Australian citizen, an Australian permanent resident or eligible New Zealand citizen at the time of the visa application?

* Was the visa applicant the holder of a `substantive visa' at the time of application?

* Does the visa applicant continue to be the spouse of the nominator at the time of decision?

21. Regulation 1.15A contains the test for determining whether one person is the `spouse' of another person, whether in a married or a de facto relationship. In Nassouh, the Federal Court held that subregulation 1.15A(3) set out mandatory considerations. Accordingly, the Tribunal, in forming an opinion whether a married relationship or de facto relationship exists, must take into account the considerations set out in subregulation 1.15A(3). These considerations relate to all of the circumstances of the relationship including, in particular, the financial aspects of the relationship, the nature of the household, the social aspects of the relationship and nature of the persons' commitment to each other.

It is clear, of course, that the Tribunal was entitled to have regard to evidence that dealt with the relationship between Mr Bretag and the applicant and between Mr Bretag and Leanne subsequent to 28 January 1990 for the purposes of testing the claimed relationship between the applicant and Mr Bretag as at that date and as at the date of the application for the PEPAE - 7 February 1990. But the evidence of the subsequent history is only relevant so long as it "tends logically to show the existence or non-existence of facts relevant to the issue to be determined": Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 4 ALD 139 at p.160 per Deane J.

23. Having regard to the considerations for a spousal relationship set out in regulation 1.15A at the time of application and at the time of decision, the Tribunal is satisfied that the review applicant and nominator were when the application was made and are currently spouses as that term is used in the regulations.

24. The couple have presented evidence of joint purchases, including equipment for their home. They are jointly responsible for the lease on their home and maintain actively used joint bank accounts. They have discussed and have made plans for a future together.

25. The couple have established a home together and are each responsible for care of their child. While the nominator is the primary care giver, it is clear that the visa applicant takes an active interest in his daughter's development. He was solely responsible for the care of his daughter during his wife's recent hospitalisation and organised this with relatives of each.

26. The couple are recognised as spouses by relatives and friends, some of whom have provided declarations of their knowledge and support for the relationship. The parties have given evidence of their enjoyment of socialising, outings together and holidays, which was clear and consistent and suggestive of a commitment to their relationship.

27. The couple expressed a clear commitment to each other and exhibited a commitment to their relationship for the future, including raising of further children.

28. The Tribunal is therefore satisfied that the review applicant and the nominator are in a married relationship, which includes a mutual commitment to shared life together as husband and wife to the exclusion of all others and is genuine and continuing. They are therefore spouses for the purpose of the relevant legislation.

29. The visa applicant held a visa, which ceased to have effect on 16 October 2000. The visa application is receipted as having been received on 17 October 2002. In respect of paragraph 820.211(2)(d), the delegate noted that she found that the Schedule 3 criteria for late lodgement were met by the visa applicant, having considered the circumstances and the submissions of the visa applicant in this regard. This means that the visa applicant satisfies the provisions of subparagraph 820.211(2)(d)(ii) and that paragraph overall. The Tribunal sees no reason for disturbing that finding.

30. The nominator is an Australian citizen by virtue of her birth in Australia.

31. The approval of a nomination of an applicant for a Class UK visa is subject to regulation 1.20J. This specifies circumstances where a nomination must not be approved, where a visa applicant or a nominator has previously been involved in a sponsorship or nomination, unless there are compelling circumstances affecting the nominator.

32. Based on the information before the Tribunal, neither the visa applicant nor the nominator has previously been involved in a sponsorship or nomination.

33. The Tribunal is, therefore, satisfied that at the time of application the visa applicant met the criteria prescribed at clause 820.211 at the time when the application was made and 802.221 currently.

34. Given these findings, the appropriate course is to remit the application for the visa to the Department to consider the remaining criteria for a Subclass 820 visa. If the visa applicant is found to meet the remaining criteria, then the visa applicant is entitled to the grant of a Partner (Temporary) (Class UK) visa. The question of a Class BS visa would then need to be considered further.

35. The Tribunal remits the application made by the visa applicant for a Partner (Temporary) (Class UK) visa to the Department of Immigration and Multicultural and Indigenous Affairs, for reconsideration with the direction that the visa applicant is to be taken to have met the following criteria for a subclass 820 (Spouse) visa: