1510580 (Migration)

[2016] AATA 3259

1510580 (Migration) [2016] AATA 3259 (10 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ana Ajah Chol Aruai

CASE NUMBER:  1510580

DIBP REFERENCE(S):  OSF2011/039522 OSF2011039522

MEMBER:Christine Kannis

DATE:10 February 2016

PLACE OF DECISION:  Perth

DECISION:The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

·cl.100.221 of Schedule 2 to the Regulations

Statement made on 10 February 2016 at 7:56am

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 Immigration on 31 July 2015 to refuse to grant the applicant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 15 June 2011 on the basis of her relationship with her sponsor. At that time, Class BC contained one subclass: Subclass 100 (Partner). 

3. The criteria for the grant of a Subclass 100 visa are set out in Part 100 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by the applicant. Relevant to this matter, the primary criteria include cl.100.221.

4. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy cl.100. 221 because no evidence had been provided that she continued to be the spouse of her sponsoring partner and none of the exceptions under cl.100.221 applied.

5. According to the chronology included in the delegate’s decision, the Department sent request letters for consideration of the applicant’s sub class 100 visa to her on 26 March 2013, 25 March 2014, 24 September 2014 and 4 November 2014.  Attempts were made to contact the applicant and the sponsor by telephone and by email in 2013, 2014 and 2015. On 28 May 2014 the applicant advised the Department of changes in her contact information. On 31 July 2015 the delegate’s written decision was sent by Registered Post to the applicant at the address she had provided.

6. The applicant appeared before the Tribunal on 8 February 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor, Mr Mathiang Kuir Aleu.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Whether the parties are in a spousal or de facto relationship

8. The issue in the present case is whether the applicant continues to be the spouse of her sponsoring partner or if her relationship with her sponsor has ceased, whether she meets any of the exceptions under cl.100.221.

9. Section 5F 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 visa applicant’s and review applicant’s household and their commitment to each other as set out in r.1.15A(3), which is extracted in the attachment to this decision.

10. Clause 100.221 requires that the applicant meet one of five alternative requirements. These include cl.100.221 (2) and (2A) which require, amongst other things, that at the time of this decision, the applicant is the spouse or de facto partner of the ‘sponsoring partner’. Unless the applicant was granted a Subclass 309 visa by Ministerial intervention, the ‘sponsoring partner’ is the person who was specified as the applicant’s spouse or de facto partner or intended spouse or de facto partner in the related Subclass 309 application, being an Australian citizen, permanent resident or eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor, a ‘sponsoring partner’ within the meaning of that term.

11. The background to this case is drawn from the written statements and oral evidence provided to the Tribunal and is as follows:

    ·The applicant and the sponsor were married in Kenya in 2011. The parties’ first child, a son, was born on 13 October 2011 in Nairobi.

    ·The applicant entered Australia as the holder of a valid sub class 309 (Partner (Provisional)) visa on 6 May 2012. The parties lived together until November 2012.

    ·During the period November 2012 until June 2015 the parties lived separately and apart.

    ·The parties’ second child, a daughter, was born on 25 February 2013 in Perth, Australia.

    ·The parties’ third child, a son, was born on 15 September 2015 in Perth, Australia.

12. The Tribunal asked the applicant the reason why she failed to respond to the Department’s attempts to contact her in 2013, 2014 and 2015. She said there was no valid reason for her failure to do so, that she did not know the procedure involved and that she may have forgotten.

13. When questioned by the Tribunal about the reason for the lengthy separation the applicant said it was due to “misunderstandings”. She explained that she felt left out of the sponsor’s financial decision making and said he had been hiding the extent of the financial support he provided to his family in Kenya. The applicant said she felt  the sponsor was giving too much money to his family and that he should look after her too. She said sometimes people leave each other alone for awhile but with the intention of coming back together.

14. The Tribunal asked the applicant about the length of time the parties lived apart. She said that in March 2014 they made the decision to live together once again. The applicant said she could not give a reason for the delay in making the decision until they resumed cohabiting. She said that they were meant to be together, that it was good for them to be together so they could help each other and that the children needed to have their father living with them.

15. The Tribunal asked the sponsor about the reason for the separation. He said that the reason was “nothing more than financial” and he explained that he had been financially supporting the applicant since 2004 when he rented a home for her in Kenya. He said that life is easier in Kenya and when she came to Australia he was not always able to give her everything she wanted.

    Whether the parties are in a spouse or de facto relationship

    Are the parties validly married?

16. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The parties provided a Republic of Kenya Certificate of Marriage dated 4 February 2011 indicating that the applicant married her sponsoring partner, Mathiang Kuir Aleu, on that date in Nairobi, Kenya.

17. On the basis of the evidence before it, and in the absence of any contrary evidence, the Tribunal concludes that the marriage satisfies the requirements for a valid marriage for the for the purposes of the Act as required by s.5F(2)(a). 

    Are the other requirements for a spousal relationship met?`

    Financial aspects of the relationship

18. The applicant told the Tribunal that during the period of their separation, the sponsor paid child support. The sponsor said he also purchased household items for the applicant including a leather lounge suite.

19. During the period of separation the applicant initially received special benefit payments from Centrelink and then found employment. She stopped working just prior to the birth of their third child. Since then the applicant has financially supported the applicant and the children. The applicant said that in the period from June 2015 when the sponsor returned to live with her until she ceased work in August 2015, both parties contributed towards the household costs.

20. Apart from some items of furniture, the applicant said that the parties have no joint assets and no joint liabilities.

21. The evidence does not demonstrate any pooling of resources however the Tribunal finds that the sponsor’s financial support of the applicant at the date of the decision is an indicator of a genuine and continuing spousal relationship.

    Nature of the household

22. The applicant said she is responsible for all household tasks such as cooking, cleaning and washing and said these responsibilities are part of her culture.

23. The applicant said that the parties both look after their children. She said that during the period of separation the sponsor would look after the children sometimes when she was working.

24. The applicant said that they share meals together.

25. The Tribunal finds that the applicant and the sponsor maintain a household together.

    Social aspects of the relationship

26. The applicant said the lease in respect of the property in which they reside is in joint names. She said they socialise as a couple.

27. A Statutory Declaration dated 6 July 2015 made by Mr Majok Malek was provided in which Mr Malek stated that he has known the applicant’s husband for over 10 years and has known the applicant for five years. He said that he meets with the applicant and her husband two or three times weekly at home, church and community gatherings.

28. A Statutory Declaration dated 16 July 2015 made by Mr John Gayo was provided in which Mr Gayo stated that he has known the applicant’s husband since 2000 in Kenya. He said that he meets with the applicant and her husband every week and that they are expecting their third child.

29. The Tribunal finds that the applicant and her sponsor undertake joint social activities. The Tribunal is satisfied that the applicant represents herself to other people as being married to the sponsor.

    Nature of persons’ commitment to each other

30. The applicant said she has always been committed to the relationship. She said she has not sought out another relationship and said she loves her husband. The applicant said that during the time they were separated she wanted to be back with her husband and she knew they would get back together. She did not tell her family in Kenya about the separation.

31. The applicant said if she has to leave Australia it will be a big disappointment because she will not be with the sponsor.

32. The sponsor told the Tribunal that the applicant has been his girlfriend since 2004. He said he returned to Kenya in 2007 and they were married in a traditional wedding. He returned again in 2009 but was unable to have a ceremony performed that was recognised in Australia. He again returned in late 2010 and in February 2011 they were married in a ceremony recognised in Australia.

33. The sponsor said he has always wanted to be with the applicant and even during the separation he wanted to “come back to the relationship”. He said the timing of resuming cohabitation was up to the applicant and he wanted to give her time and not rush her.

34. The sponsor told the Tribunal that when they separated he was at the applicant’s home at least once a week. He said that he drove the applicant when she needed to go to an appointment and to her job interview.

35. The sponsor informed the Tribunal that the financial circumstances which caused the separation no longer exist. He said that his brothers, one living in Canada and one running a small business, now contribute towards supporting the family in Kenya too. He said his financial duties towards helping his family have now changed.

36. The Tribunal finds that at the time of decision the applicant and the sponsor have a commitment to each other.

    The parties’ separation

37. The Tribunal considered the lengthy period during which the parties were separated. The Tribunal had regard to the parties’ evidence of continued contact and involvement in each other’s lives during the period of separation. The Tribunal noted that the parties’ second child was born during the separation period and their third child was conceived during that period.

38. During the period of separation the sponsor supported the applicant financially and on a practical level including driving her to appointments. Both parties told the Tribunal that during the separation they wanted to resume cohabitation.

39. The Tribunal had concerns with respect to the applicant’s failure to respond to the Department’s attempts to contact her and put it to her that it was open to consider that she had been deceiving the Department. She said she was not deceiving the Department because she came to Australia to be with the sponsor and that is what she still wanted.

40. Despite these concerns and having regard to all of the evidence, the Tribunal concludes as follows:

    • The parties are married to each other under a marriage that is valid for the purposes of the Act;
    • they are not living separately and apart on a permanent basis and that they see their future as a long term one;
    • they have a mutual commitment to a shared life together to the exclusion of others; and
    •  that the relationship is genuine and continuing.

41. Accordingly, the Tribunal finds at the time of its decision the applicant continues to be the spouse of the sponsor and therefore the applicant meets the requirements of cl.100.221(2)(b).

42. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 100 visa.

    Overall assessment

43. After considering the available evidence, the Tribunal is satisfied that at the time of decision, the parties’ relationship continues to meet the definition of spouse or de facto. The Tribunal is therefore satisfied that the requirements of clause 100.221 are met at the time of decision. 

    DECISION

44. The Tribunal remits the application for a Partner (Migrant) (Class BC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 100 (Partner) visa:

    ·cl.100.221 of Schedule 2 to the Regulations

    Christine Kannis
    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).