IMSEEH (MIGRATION) [2022] AATA 2245 (1 JULY 2022)

In this matter, Tribunal affirmed the decision of the Minister’s delegate not to grant the applicant a partner visa as it was not satisfied that the applicant and sponsor had a mutual commitment to a shared life as husband and wife to the exclusion of all others and therefore did not meet a criterion for the visa that the applicant is the spouse of the sponsor.

Facts:

In this matter, the applicant is a Jordanian citizen who married the sponsor in March 2013, the applicant’s permanent Partner visa was refused for not meeting cl 801.221.

The applicant entered Australia in May 2013 with the temporary Partner visa but was refused a permanent visa as the delegate was not satisfied that he was in a spousal relationship with the sponsor. The applicant sought review of the delegate’s decision but the Tribunal affirmed the decision under review. The applicant sought judicial review and the matter was remitted to the Tribunal for reconsideration.

On appearing before the Tribunal and producing the evidence and arguments, the Tribunal after hearing upheld the decision.

Issues

The tribunal considered following issues:

1. Is the marriage between the parties a valid one?
2. Whether the requirement for a spouse relationship are met by the parties?

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Considerations and Decision

The tribunal was satisfied that the marriage between the parties is valid as the applicant had produced a valid registration of marriage certificate from Year 2013.

However, the tribunal was not satisfied that the parties meet the requirement for a spouse relationship as the applicant and the sponsor had inconsistencies in answers to the basic questions asked by the Tribunal. 

Despite producing large volume of documentary evidence showing the genuineness of the marriage such as evidence of joint bank account, correspondence sent to same address, joint names on receipts etc, the applicant had minimal knowledge about his wife.

The applicant did not have any information about the wife’s income or about her savings or if there was a beneficiary on his wife’s superannuation account. Even though there was a joint account for the parties, his wife did not contribute to the joint account and her income was deposited into her own separate account.

On being asked about his stepson, though he claimed to have a close relationship with the stepson, he failed to answer the questions asked about the step son like his interests or what he intended to do upon completing high school (which is in less than a year) or his best friends’ name. The tribunal concluded that the applicant’s knowledge about his stepson was minimal.

The tribunal was concerned with the inconsistencies in the parties’ oral evidence about aspects of their relationship and was of the view that, had the applicant and sponsor established a joint household and lived together for about 10 years as claimed, they would have had better knowledge about each other than what was displayed during the hearing. 

From the above instances the tribunal couldn’t establish a spouse relationship between the parties irrespective of the reasons produced by the parties and found that the applicant does not meet cl. 801.221 as per the requirement for granting the applicant a Permanent Partner visa.

Analysis

The Tribunal upheld the Minister’s decision not to grant the applicant a permanent partner visa, as they were not convinced that the applicant and sponsor had a genuine and continuing spousal relationship. Despite producing evidence of a valid marriage and other documents like a joint bank account, joint receipts, and correspondence sent to the same address, the applicant’s knowledge of his spouse and stepson was minimal, and there were inconsistencies in their answers to questions about their relationship. The Tribunal considered the four pillars of the relationship (financial, household, social, and commitment) and found that they were not satisfied. This case highlights the importance of providing sufficient evidence to prove a genuine and continuing spousal relationship to successfully apply for a partner visa.

Section 5F of the Migration Act 1958 and Migration Regulation 1.15A(1A) dictates that the decision makers are to consider the four aspects of the relationship, commonly known as “four pillars of relationship”. They as as following

• financial aspects of the relationship 
• nature of the household 
• social aspects of the relationship 
• nature of the persons’ commitment to each other

It is important to establish that these four aspects are satisfied, as a proof of genuine and continuing spouse relationship between a sponsor and applicant, otherwise the partner application may not succeed.