1511434 (Migration)

[2016] AATA 3171

1511434 (Migration) [2016] AATA 3171 (21 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Timothy Aham Opara

VISA APPLICANT:  Mrs Uchechi Maryjoan Ihewunwa

CASE NUMBER:  1511434

DIBP REFERENCE(S):  BCC2014/656874

MEMBER:Ian Garnham

DATE:21 January 2016

PLACE OF DECISION:  Melbourne

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

·r.1.15A

Statement made on 21 January 2016 at 12:58pm

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 16 June 2015 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 25 February 2014 on the basis of her relationship with her 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. Relevantly to this matter the primary criteria include cl.309.211 and cl.309.221

3.    The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because they were not satisfied that the relationship is genuine committed and on-going.

4.    The review applicant appeared before the Tribunal on 19 November 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Uchechi Maryjoan Ihewunwa, who is the visa applicant.

5.    The review applicant was represented in relation to the review by his registered migration agent. On 17 November 2015 a submission was provided to the Tribunal (the submission).  The representative attended the Tribunal hearing by teleconference.  On 26 November 2015 a further submission was provided (the second submission). 

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

CONSIDERATION OF CLAIMS AND EVIDENCE

7.    The major issue in the present case is whether the parties have a genuine intention to conduct a committed long-term relationship as contemplated by the legislation.

Whether the parties are in a spouse or de facto relationship

8.    Clause 309.211(2) and 309.221 require that at the time the visa application was made, and at the time of this decision, the visa 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 visa applicant claims to be the spouse of the review applicant who is an Australian citizen since 11 April 2012.

9.    ‘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 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.

Are the parties validly married?

1. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship.

2. The parties claim to have married in Nigeria on 12 December 2013.  A copy of a Nigerian marriage certificate for the parties that is registered on this date has been submitted and accepted by the Department.  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?

Inception and development of the relationship:

1. The review applicant came to Australia from Nigeria on a partner visa in January 2008.  On 11 May 2009 he was granted a permanent visa and on 11 April 2012 he became an Australian citizen.

2. In 2012 the parties were introduced through a mutual friend who has provided a statutory declaration dated 17 November 2015.  The declaration sets out the circumstances of the introduction as follows:

   The declarant called the visa applicant in the presence of the review applicant and they all had a conversation; at its conclusion the parties exchanged phone numbers and agreed to continue communicating. 

   Throughout 2012 and 2013 the declarant claims to have discussed the ongoing communication between the parties with the review applicant, the review applicant advised him that they spoke daily and he was hoping to go to Nigeria to personally meet the visa applicant in May 2013.

   (The review applicant travelled to Nigeria in the period; 10 May 2013 to 28 May 2013)      

   Upon his return he advised the declarant that the parties planned to marry later in the year.  The declarant states that he telephoned the visa applicant who requested that he attend their wedding.  The declarant advised that he would not be able to attend the wedding.  However he claims to have advised as follows; …the family would do a large traditional wedding in Victoria with the Igbo community upon her arrival and that I would be pleased to be Master of Ceremony since I was the one that introduced them.

   The declarant claims to have maintained direct contact with the parties through the birth of their child and the progress of this visa application.  He attests to the strain on both of the parties caused by the delays and also their commitment to the relationship. 

3. As indicated above, and as extensively corroborated by documentary evidence, the parties married on 12 December 2013 and their child, Chigozie Davis Timothy was born on 10 September 2014.  Chigozie was registered as an Australian citizen by descent on 19 October 2015.

4. At the hearing the review applicant advised that he was travelling to Nigeria the next day to see his family and provide gifts for his son.  He advised that he would be returning on 3 January 2016. 

5. In the second submission the parties have provided evidence of this recent time together in Nigeria, including; copy of the review applicant’s stamped passport, pictures of the parties with the visa applicant’s parents and Chigozie, pictures of the gifts and baby supplies including clothing and toys taken by the review applicant to his family in Nigeria.

6. The delegate was concerned that the evidence of the communication between the parties did not exist prior to their decision to marry made in May 2013.  They were also concerned that, of the phone records that were provided, the longest call was for 18 minutes and may calls were only of approximately 4 minutes duration.    The delegate also thought that the parties may have had assistance compiling their SMS messages due to the level of sophistication of the messages.

7. In response, the review applicant said that the earlier phone records for their communication on Viber and WHATS – APP were impossible to retrieve because they had both changed phones since then.  In the submission it is argued that the number of short calls in the call log is reflective of the typical network problems experienced by all users when communicating between Australia and Nigeria.  When it was put to the review applicant that another person may have assisted him with his messaging, he disdainfully advised the Tribunal that the parties wrote and were responsible for their own messages.

8. The Tribunal finds the explanations that the parties have provided to the above issues are credible and convincing.  In addition, contained in the submissions the parties have continued to document their communications for the course of their relationship since February 2014.  

9. At the hearing the parties provided consistent information about their introduction and the progress of their relationship.  Quite simply there is no evidence before the Tribunal that indicates this is not a genuine and committed relationship.  It is also a relationship where the parties seek to live together and they are not living separately and apart on a permanent basis by choice.

Financial aspects of the relationship:   

1. The review applicant has lived in Australia since January 2008.  He suffered a workplace injury in 2011 and received compensation payments for a long period.  Most recently the review applicant claims to have successfully operated a business throughout 2014, which he sold in August 2015.  The review applicant claims that he is considering setting up a new business in the short term.  He has not discussed his recent business ideas with his wife.

2. The visa applicant is a trainee nurse and is studying part-time.  Since the couple met she has continued studying and hopes to continue her nursing career in Australia.  Initially the review applicant was sending money to assist with the care of her adopted children.  These two children were the secondary applicants on the original application but were removed from the application by the visa applicant, following the birth of Chigozie because she believed that they were causing delay in the processing of this application. 

3. The submission details the total payments made by the review applicant to the visa applicant as follows:

   ·November – December 2013 - $2,651.93

   ·May – November 2014          -  $5,033.36

   ·January – October 2015        -  $2,957.13

   The parties said that initially money was sent by the review applicant to provide assistance to the visa applicant and the two children she was caring for.  However when Chigozie was born, in September 2014, the children were placed in the care of the visa applicant’s parents.  The subsequent payments have been made by the review applicant to provide care for the visa applicant and their child, Chigozie. 

4. The second submission also contains details of a land purchase made by the parties in Nigeria on 9 July 2014.  The title and transfer documents show that the land is jointly owned by the parties.  At the hearing the review applicant said the land was purchased so that his family would retain an interest in Nigeria.

5. The review applicant told the Tribunal of the details of the Dowry he paid to the visa applicant’s parents and how he negotiated this.      

6. All of the information before the Tribunal indicates that since the parties met in person, in May 2013, they have collectively managed their finances with a view to living together as family with their child in Australia.

Nature of the household:

1. Due to the circumstances of their relationship the parties have spent very little time living together.  However the Tribunal notes that since the hearing the parties have now spent a further 6 weeks together.

2. The parties advised at the hearing that after physically meeting for the first time in May 2013 the parties went straight to a Hotel in Lagos and stayed there for the whole time during this trip.  The visa applicant is a Nurse and works nearby on shift work.

3. The visa applicant said they went out to beaches and the swimming-pool and restaurants.  During this time, the visa applicant said she hired a Nanny to look after the children that were in her care.  She also said after a while she decided that she loved the review applicant and agreed to marry him.

4. On the second trip the parties claim that they also stayed mostly at the hotel in Lagos, but that they also spent some time, after their marriage, travelling to the home of the visa applicant’s parents to spend time with them. 

5. The parties have realistically spent very little time together in which to establish roles as to how their household will operate.  Both parties indicated that their intention is that upon arrival the visa applicant will study to bring her qualifications within the Australian standards.  Both said they intend to have 2 children and the visa applicant has also stated that in the future she intends to seek to have the adopted children that were in her care in Nigeria come to Australia so that she can continue to care for them.

6. The functioning of the household for this family in the future will focus on the care and development of the now 16 month old Chigozie.  The parties will have by now experienced an extended period of doing this while the review applicant has been in Nigeria.  What is evident from all of the information before the Tribunal, and in particular the third party statements made by various people; is that the parties are devoted to the concept of a life together as a family in Australia.    

Social recognition of the parties

1. During the review applicant’s first trip to Nigeria to see the visa applicant he claims to have rung his father and advised him that he got on well with the visa applicant and they intended to get married.  The parties decided to register their marriage in Nigeria only and are planning a full wedding ceremony when the visa applicant comes to Australia.

2. Various photographs of the wedding day have been provided to the Tribunal.  Further evidence which attests to the wedding occurring includes a declaration from a colleague of the visa applicant who acted as witness at the ceremony.  In addition the visa applicant has provided a letter from her employer approving leave for the period 12 -19 December 2013 to get married.

3. The Tribunal also has a declaration from the visa applicant’s father setting out his acceptance of the wedding and blessings for the parties in their relationship. 

4. The review applicant’s father and brother live in Australia and both have provided declarations in support of the application.  They both also state that they have spoken with the visa applicant on electronic media and that they will support and assist the young couple when the visa applicant comes to Australia.

5. There is no evidence before the Tribunal that indicates that the parties have not been up front and do not hold themselves out to be married and in a genuine committed relationship to anyone who they encounter.

Mutual commitment to one another

1. Collectively the parties have demonstrated a significant commitment to the progress of firstly, the processing of this visa application, and now the progress of the review of the decision before the Tribunal. 

2. Both parties, and in particular the review applicant, have made significant financial sacrifices to fund this relationship.  They have also cemented the genuineness of their relationship by the birth of Chigozie.  All of the evidence before the Tribunal indicates that the parties are jointly committed to the long term welfare of their young family.   

3. The Tribunal has no difficulty in finding that since the parties first met in May 2013 they have conducted a genuine and committed relationship, to the exclusion of all others.      

4. The Tribunal also finds that the parties have not lived separately and apart on a permanent basis but that they have done so on a temporary basis due to factors outside of their control.

5. Given these findings the Tribunal is satisfied that at the time the visa application was made and the time of this decision the parties were in a spousal relationship.

6. The relationship of the parties meets the requirements of r.1.15A and therefore the visa applicant meets cl.309.211 and cl.309.221.

7. 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 309 visa.

DECISION

1. 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

   ·r.1.15A

Ian Garnham
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).