1410614 (Migration)

[2015] AATA 3009

1410614 (Migration) [2015] AATA 3009 (1 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr AZIK ALI

CASE NUMBER:  1410614

DIBP REFERENCE(S):  CLF2013/13536

MEMBER:Kira Raif

DATE:1 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 01 July 2015 at 9:00am

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 on 13 June 2014 to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant is a national of Fiji, born in March 1977. He married Ms Perger, who is an Australian citizen, in November 2012. The applicant applied for the visa on 17 January 2013 on the basis of his relationship with Ms Perger.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.820.211 because the delegate was not satisfied that the applicant and Ms Perger were in a genuine spousal relationship. The applicant seeks review of the delegate’s decision. The applicant appeared before the Tribunal on 23 June 2015 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor. The applicant was represented in relation to the review by his registered migration agent.

4. The issue before the Tribunal is whether the applicant is the spouse of the sponsor, within the meaning of s. 5F of the Act. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

5. Clauses 820.211(2) and 820.221 require that at the time the visa application was made, and at the time of this decision, the 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 applicant claims to be the spouse of the sponsor who is an Australian citizen.

6. ‘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 husband and wife 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 as to 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 parties’ household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

   Are the parties validly married?

7. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. When making the application for the visa, the applicant provided a copy of the marriage certificate showing that the marriage was solemnised in January 2013. 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).

   Are the other requirements for a spousal relationship met?

8. The Tribunal has had regard to the documentary evidence that was before the delegate and additional documentary evidence that has been provided to the Tribunal. The Tribunal has also considered the oral evidence of the parties. For the reasons that follow, the Tribunal is not satisfied that the applicant is the spouse of the sponsor.

9. The Tribunal has formed the view that the parties provided untruthful evidence about the circumstances of their meeting. The applicant informed the Tribunal he had no contact with the sponsor before late November 2012 when he met her at his sister’s place. (The sponsor’s evidence to the Tribunal was different – see below). The applicant informed the Tribunal that his sister tried to ‘set them up’ but his evidence to the Tribunal is that he had never spoken to the sponsor and never had any personal contact with her before the first meeting. The applicant could not offer a satisfactory explanation as to why he made little effort to set up communication with the sponsor prior to his visit to Australia, if he had heard about the sponsor from his sister and there was some suggestion about the possibility of a relationship. The applicant claims there was limited communication on the island where he lived but the Tribunal does not accept that it would not have been possible to at least exchange letters, even if the applicant lived in a remote area. The applicant claims his sister first spoke to him about the sponsor in 2010. The Tribunal is not convinced that in the two years since his sister spoke to him and before late 2012 when he first came to Australia, the applicant could not have made arrangements to communicate with the sponsor.

10. The Tribunal finds it significant that the sponsor’s description of that period is entirely different.  The sponsor informed the Tribunal in oral evidence that she first spoke to the applicant’s sister about the applicant about a year before his trip, in late 2011. It makes little sense that the sister would speak to the applicant about the possibility of a relationship in 2010, then do nothing for a year and then have that conversation with the sponsor in 2011. The sponsor could not explain to the Tribunal whether at the time she spoke to the applicant’s sister about the applicant, the sister had already had the conversation with the applicant. The Tribunal considers it odd that the applicant and the sponsor would not have talked about that matter in the past two and a half years. The sponsor also informed the Tribunal that prior to the initial face to face meeting, the sister showed each the photograph of the other. The Tribunal is mindful that the applicant made no mention of the exchange of photos prior to the first meeting. The Tribunal considers these inconsistencies to be significant. The Tribunal has formed the view that the parties had not been truthful in their description of the circumstances in which they were introduced.

11. The Tribunal is most concerned about the speed with which the relationship developed. The applicant’s evidence to the Tribunal is that he and the sponsor first met in person in late November 2012. He claims that two days later he met her parents and was introduced as a boyfriend. (Again, the sponsor’s version of these events is entirely different.) The applicant claims the marriage was registered on 12 January 2013, so the NOIM would have been lodged no later than mid-December 2012 to give the prescribed period of notice, that is, less than three weeks after the couple first met. The Tribunal is not convinced that the parties could have formed a meaningful commitment to a relationship within three weeks of meeting each other. The applicant suggested to the Tribunal that he had a multiple travel visa and could have returned to Fiji or applied from Fiji, so the expiry of his visa in mid-January 2013 was not the reason for the quick marriage. If that was the case, it remains unclear to the Tribunal why the parties did not take a little more time to get to know each other before committing to marriage. The Tribunal is not convinced that they formed a genuine commitment to marriage within a very brief period of about three weeks from the time they first met in person until the time they filled the NOIM. The Tribunal finds such haste to be inexplicable.

12. The applicant informed the Tribunal he proposed to the sponsor in the second week of December, that is, less than three weeks after they first met. When asked why these matters were so rushed, the applicant informed the Tribunal that he trusted his sister’s judgment as his sister knows him well. However, he also informed the Tribunal that his sister had to ask him whether he was married and whether he had a relationship because she lived in Australia and did not know about his circumstances. If the sister had to ask the applicant about such basic aspects of his life, the Tribunal is not convinced that the sister had sufficient knowledge about the applicant’s personality to recommend a good match and for the applicant to accept that match without taking too much effort to get to know the sponsor.

13. The parties gave substantially inconsistent oral evidence to the Tribunal about the development of their relationship. For example,

    a.The applicant informed the Tribunal he had no contact with the sponsor prior to arriving in Australia. The sponsor said she spoke to him on the phone and by text two or three times before the first face to face meeting in November 2012.

    b.The applicant informed the Tribunal that the second time he and the sponsor met, he stayed overnight at the sponsor’s place. The sponsor said he did not stay at her place on that day.

    c.The applicant said that on the third day the sponsor took him to meet her family and introduced him to her family as her boyfriend. The sponsor said that on that day they drove around and came back to her place. She said that they saw each other every day that week and were ‘just talking’. She made no mention of introducing the applicant to her family.

    d.The applicant informed the Tribunal that he met the sponsor’s family on the third date. The sponsor said that he did not meet her family for a couple of months and not until the marriage because they were travelling at the time.

    e.The sponsor said they formed a decision to form a boyfriend / girlfriend relationship a week after the first meeting. The applicant said that the sponsor introduced him to her family as a boyfriend on the third day after they met.

    f.The applicant said that after they first met and when they continued to see each other, the sponsor used to go to work and would then visit his sister’s place after work. The sponsor said she was recovering from an appendix operation and did not work for the first week after they met.

14. The substantially different accounts of the relationship by the applicant and the sponsor suggest to the Tribunal that the parties had not been truthful in their evidence. The Tribunal has formed the view that they had simply fabricated an account, rather than described the circumstances as they existed. The lack of truthfulness in their evidence, and the haste with which the parties made the decision to register marriage, suggest to the Tribunal that the marriage was arranged solely for visa purposes.

15. The Tribunal has had regard to the various aspects of the relationship. The Tribunal has substantial concerns about the couple’s living arrangements. Their evidence to the Tribunal is that the applicant lives predominantly in Sydney with his mother while the sponsor lives in Queensland. They claim that such arrangements are necessary because of their employment commitments and financial circumstances. Essentially, the parties claim they could not find employment in the same city. The Tribunal finds that evidence unconvincing. The applicant informed the Tribunal that he had looked for a job in Queensland but could not find one. The applicant presented no evidence of having made any job applications in Queensland and of having been unable to find employment. The Tribunal is mindful that the applicant’s employment is not so specialised as to be limited to any geographical location (he trained as a cook). The Tribunal is not convinced that the applicant was incapable of finding employment in Queensland for the past two and a half years since the couple formed a commitment to marriage. Neither is the Tribunal satisfied that the sponsor would have been unable to find a job in Sydney. Again, no evidence has been presented to show that she has applied for any jobs in Sydney and that she has not been offered any. Her oral evidence to the Tribunal is that she is willing to upgrade her skills to be able to work in NSW but no evidence has been presented to indicate that any steps had been taken to do so. The Tribunal also notes the applicant’s evidence that he found a job about six months ago. That is, for about two years after the couple married, the applicant was unemployed and there does not seem to be a good reason why he could not have remained in Brisbane with the sponsor in that period. The applicant suggested that there were financial concerns as his mother has been supporting him but he conceded in his oral evidence to the Tribunal that his mother could have supported him if he lived in Queensland.

16. The Tribunal accepts the parties’ evidence, which is supported by documentary evidence, that the applicant travelled to Queensland on a number of occasions. The Tribunal is prepared to accept that the couple lived together during these periods. However, the Tribunal finds that such periods were relatively brief. In the two and a half years of the couple’s marriage, they spent only a few months together. The Tribunal is not satisfied that there were good reasons for the parties to live separately. The Tribunal is not satisfied that they had taken adequate steps to ensure they could live together or that they established a joint household. The Tribunal is of the view that the parties’ separate living arrangements and their failure to take adequate steps to establish a joint household offer a strong indication that they lack mutual commitment to a relationship and do not view it as a long term one.

17. The Tribunal has had regard to the financial aspects of the relationship. The applicant presented with the application evidence of a joint bank account. The Tribunal accepts that the parties operate a joint account and that some money goes into and out of that account. However, the applicant informed the Tribunal that both he and the sponsor also operate their separate accounts where their salaries are deposited. The applicant explained to the Tribunal that he closed his previous individual account and opened one in a different bank which was easier to use for his overseas transactions. The sponsor explained to the Tribunal that all her bills were paid from her individual account and it was too hard to change. It is unclear to the Tribunal why the applicant could not have been joined in that account, if the sponsor did not want to change all her payments or why the joint account could not have been opened in the bank where the applicant would have easy access to overseas transactions. The Tribunal is also concerned that the sponsor seemed to have no knowledge of the amount in the joint account. The Tribunal is concerned that the parties operate individual bank accounts for daily transactions, including income from employment and general bills. The Tribunal has formed the view that the joint account was only opened for the purpose of the migration application and does not reflect the parties’ desire to share financial resources.

18. The applicant also presented with his application copies of the parties’ wills nominating each other as beneficiaries. The purpose of arranging such wills is unclear. The applicant informed the Tribunal he never had a will before because had had no assets. However, he had no assets at the time the will was prepared. He had not yet found a job at the time. He said his mother suggested she would transfer property to him but that had not happened to date. The applicant had no more assets at the time the will was drafted than at any other time when he felt no need to prepare a will. The applicant informed the Tribunal that his wife did not have a will previously either. The applicant informed the Tribunal that his previous migration agent recommended they draft a will. The Tribunal is of the view that the sole purpose for doing so was for establishing evidence for their migration application. The Tribunal is not satisfied that the joint will shows the couple’s willingness to share their finances. The applicant also provided to the Tribunal evidence of his partner being nominated as a beneficiary on his superannuation policy and the Tribunal acknowledges that evidence.

19. There were other deficiencies in the parties’ oral evidence to the Tribunal that cause the Tribunal to question their financial arrangements. The Tribunal has formed the view that the parties do not have adequate knowledge about each other’s finances that could be expected of a couple in a genuine and committed relationship. For example,

    a.The applicant informed the Tribunal the sponsor earns $800 per week. The sponsor said she earns $740 after tax or $850 before tax. 

    b.The applicant said that the sponsor pays rent of $210 a week. The sponsor said the rent is $200 a week. In the Tribunal’s view, this is problematic because the applicant claims to deposit the rent into the joint account. The applicant said the rent is paid on Tuesdays, the sponsor said it is paid on Wednesdays.

    c.The applicant informed the Tribunal the place where he currently lives is mortgaged and he sometimes helps his mother pay the mortgage. The sponsor said there was no mortgage as far as she was aware.

    d.The applicant informed the Tribunal that he is paid on Wednesdays. The sponsor said he is paid on Thursdays. The applicant suggested that the money gets deposited on Thursday but the Tribunal’s question was in relation to when the salary is paid, not when it is deposited in the bank.

    e.The applicant said that his mother paid for the wedding. The sponsor said the applicant, his mother and sister contributed to the wedding.

20. Having regard to these answers, the Tribunal is not convinced that the parties had discussed their financial arrangements with each other.

21. Overall, the Tribunal is satisfied that the couple have a joint bank account and that they had made some effort to share their finances. However, the Tribunal has formed the view that they had done so for the purpose of establishing evidence for the migration application and not as a form of commitment to each other and the relationship.

22. The Tribunal has had regard to the social aspects of the relationship. Several statements had been provided with the primary application and more statutory declarations and photographs had been presented to the Tribunal. The Tribunal accepts on the basis of this evidence that the relationship is known to others and also that the parties had socialised together. Despite that, the Tribunal has a number of concerns. For example,

    a.The parties’ evidence to the Tribunal is that the sponsor’s family had not attended the wedding in January 2013. (The Tribunal acknowledges that they did in March 2015). There did not seem to be a very good reason for that. The sponsor informed the Tribunal that her parents were travelling. The Tribunal notes that this is the first marriage for the sponsor. One might expect it to be a significant event in one’s life.  The Tribunal is not convinced that any travel arrangements by the sponsor’s parents could not be changed to attend the wedding or that the wedding itself could not have been organised when the family was available.

    b.The applicant informed the Tribunal that his brother applied for the visa to come to Australia for the wedding but he could not get the visa on time. The sponsor informed the Tribunal that neither the applicant’s father nor his brother made any attempt to attend the wedding. The Tribunal is concerned both by the fact that the applicant’s father and brother made little effort to participate in this important event and also by the fact that the parties seem to have had no discussion about their involvement.

23. The Tribunal accepts that the parties had disclosed their relationship to others and that there is at least some family and social recognition of the relationship, as is evidenced by the various statutory declarations. However, the Tribunal is not satisfied that the parties present themselves as being in a genuine and committed relationship to a wide range of people.

1. The Tribunal has considered the parties’ commitment. The Tribunal acknowledges that a number of telephone bills, messages, cards and various other documents had been presented with the application, including to the Tribunal. The parties claim they message each other daily and speak on the phone every two to three days. If they do, the Tribunal is concerned that they appear to have so little knowledge about each other and their daily lives. This is evident from the answers the parties gave in oral evidence to the Tribunal when questioned about basic aspects of their daily lives, as set out below.

2. The Tribunal questioned the parties about each other’s employment arrangements. The Tribunal has formed the view that they were not familiar with these.

   a.The applicant informed the Tribunal that the sponsor works from 6 am to 2.30 pm or from 7 am to 4 pm. The sponsor said that her hours vary, sometimes she starts at 6 am, sometimes at 8 am and sometimes later.

   b.The applicant informed the Tribunal that in the week before the hearing, the sponsor worked from 7 am to 4 pm every day. The sponsor said that in that week she started at 8.30, 8.45 and at 9 am.

   c.The sponsor was uncertain about the applicant’s hours of employment or days of work. She informed the Tribunal that in the week before the hearing, the applicant did not work on Wednesday and Thursday or may be Thursday and Friday. The applicant said he did not work on Thursday and Monday in the last week.

   d.The applicant said in the past week he worked from 7 am until 2.30 pm every day. The sponsor said in the past week the applicant did 12 hour shifts on two days.

   e.The applicant said it takes him 1hour 15 mins to get to work. The sponsor said it takes the applicant about two hours to get to work. The applicant informed the Tribunal it takes the sponsor one hour to get to work. The sponsor said it takes her half an hour to get to work. This is problematic in the Tribunal’s view, because the parties claim to have lived together for a number of months while the sponsor was going to work.

   f.The applicant informed the Tribunal that he worked as a catering assistant at Greenwich Hospital. The sponsor said that he worked as a cook at a nursing home.

3. The Tribunal acknowledges that most of these matters are not of great significance on their own. However, the Tribunal considers these to be important because in the Tribunal’s view, they signify the parties’ lack of interest in each other’s affairs. They claim to be in regular and frequent communication and the Tribunal would expect the parties to have greater knowledge about such matters.

4. There were a number of other inconsistencies in the parties’ oral evidence that cause the Tribunal to question the credibility of their claims and the level of knowledge the parties have with respect to one another.

   a.The sponsor informed the Tribunal she had been living at her current place for two years and one month. The applicant said she had lived there for one year and seven months.

   b.When asked about getting his overseas qualifications recognised, the applicant informed the Tribunal that he would have to do a TAFE course. The applicant said that he did not seek recognition of his qualifications because he had to study. The sponsor informed the Tribunal that the applicant had to do a TAFE course and that he was in the process of collecting information about recognition of his qualifications and that he plans to do the TAFE course this year. The applicant made no mention of making any arrangements to undertake the course this year.

   c.The sponsor could not recall how many people attended the wedding. The applicant informed the Tribunal 23 people attended, the sponsor said 20 people attended. The sponsor could not remember the name of the park where the ceremony was held. The Tribunal acknowledges that she does not normally live in Sydney and may not be familiar with Sydney parks, but the significance of the occasion may justify some attention to the name of the location where the wedding was held.

   d.The applicant informed the Tribunal 53 people attended the formal wedding celebrations in March 2015. The sponsor said there were 45 people and she was certain about the number her mother paid for the food.

   e.The applicant informed the Tribunal he and the sponsor purchased wedding rings for each other. The sponsor said the applicant’s sister picked her ring and his mother purchased his ring.

   f.The applicant informed the Tribunal he first saw a migration agent after the application for the visa was lodged. The sponsor said she did not visit the agent but the applicant told her he first saw a migration agent before they got married and before the application was lodged.

   g.The applicant informed the Tribunal the sponsor likes country music. The sponsor said she had no particular preferences music and listens to different artists. They provided consistent information on each other’s reading and TV habits. The applicant said he likes Elton John and Boney M, the sponsor said he had no particular preferences for artists. The applicant said he likes reading men’s magazines, celebrity magazines and Bollywood magazines. The sponsor said he likes current affairs but has no other reading preferences.

5. Having regard to these answers, the Tribunal has formed the view that despite their claimed frequent communication, the parties’ knowledge about each other is not consistent with the existence of a genuine and committed relationship that has lasted for two and a half years.

6. The Tribunal discussed these inconsistencies with the applicant in the course of the hearing. The applicant suggested that ‘may be’ there were some inconsistencies in relation to events, times and dates as two and a half years had passed. The applicant said that his wife is not very good with dates and events. The Tribunal finds that explanation unconvincing. The issues above do not relate to specific dates. The inconsistencies are wide-ranging and relate to a variety of events and matters and different aspects of the couple’s lives. The Tribunal is not convinced that after two and a half years the parties would be unable to remember whether they had any communication with each other before first face to face meeting in Australia, whether the applicant first met his wife’s family three days after first meeting each other or several weeks after the first meeting. The Tribunal is not convinced that after two and a half years the parties cannot be expected to remember whether they purchased wedding rings or somebody else did that for them. The Tribunal is also mindful that many of the inconsistencies described above relate to the present circumstances of their lives, rather than events that occurred years ago. In the Tribunal’s view, such inconsistencies reflect the parties’ lack of candour and lack of knowledge about each other, rather than the sponsor’s claimed inability to recall dates and events.

7. Overall, the Tribunal accepts that the parties are validly married and that they had made some effort to establish evidence in support of their claims. However, the Tribunal has formed the view that such evidence was established for the benefit of the migration application. The Tribunal is most concerned about the haste with which the parties claim to have formed the commitment to the relationship. The Tribunal has formed the view that they had not been truthful in their evidence, given the various inconsistencies described above. The Tribunal has also formed the view that they do not have adequate knowledge about each other and that indicates their lack of commitment to the relationship. While a number of documents has been presented throughout the application process, the Tribunal is of the view that such documents would be equally available if the relationship was not a genuine one. The Tribunal does not consider that the presence of such documents overcomes the Tribunal’s concerns.

8. The applicant informed the Tribunal that he had a good job in Fiji and has properties and is well off. The applicant suggests that he would not get married only for visa purposes or migration purposes. The Tribunal is not satisfied that the mere fact that the applicant decided to give up what he claims to be a good life in Fiji and to travel to Australia supports the claim that he is in a genuine and committed relationship with the sponsor.

9. The Tribunal has had regard to all the aspects of the relationship. The Tribunal acknowledges that some aspects of the relationship point to the existence of a genuine and committed relationship but, overall, the Tribunal is not satisfied that such a relationship exists. The Tribunal is not satisfied that the applicant and the sponsor have a mutual commitment to a shared life together to the exclusion of all others. The Tribunal is not satisfied that the relationship between them is genuine and continuing. Given these findings the Tribunal is not satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship. Therefore the applicant does not meet cl.820.211(2). There is no evidence before the Tribunal to indicate that the applicant meets the alternative criteria in cl. 820.211. The Tribunal is not satisfied that the applicant met that provision at the time of the application or that he continues to meet that provision for the purpose of cl.820.221.

   Conclusion

10. For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.

    DECISION

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

    Kira Raif
    Senior Member