1511448 (Migration)

[2016] AATA 4412

1511448 (Migration) [2016] AATA 4412 (19 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Setesemhal Gebrekidan Zeleke

VISA APPLICANTS:  Mr Ermiyas Fekadu Biratu
Miss Gebrewahid Masho

CASE NUMBER:  1511448

DIBP REFERENCE(S):  OSF2014044630

MEMBER:Justin Meyer

DATE:19 September 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Partner (Provisional) (Class UF) visas.

Statement made on 19 September 2016 at 3:48pm

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 11 August 2015 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 28 October 2014 on the basis of their relationship with their 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 due to there being insufficient evidence of a genuine and continuing spousal relationship.

4. The review applicant appeared before the Tribunal on 15 August 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ermiyas Fekadu Biratu.

5. The review applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether at the time of application and at the time of decision the parties were in a genuine spousal relationship.

   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.

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?

10. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. In this case the parties were married in Ethiopia in 2014 as evidenced by an extract of a marriage certificate registered upon 5 June 2014. 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?

    Financial aspects

11. The parties gave evidence in relation to their finances. The review applicant works in a hospital as an environmental supervisor. The visa applicant is a car mechanic by profession.

12. The financial circumstances of the parties and their time apart would limit joint financial activities to a significant degree. Nonetheless there is little evidence of financial mingling between the parties. The review applicant said in oral evidence that the payment for the costs of the parties’ wedding in 2014 was made by the visa applicant. The visa applicant differed on this point, stating that the costs were shared roughly half-half. Here even such minor potential mingling is not very apparent.

13. Little other detail was nominated by either party of giving or receiving financial support, other than receipt of small amounts for such matters as hotel stays and sundry items.

14. There is no evidence of joint investment or commitments of another kind. For example, the property owned by the review applicant remains in her name alone.

15. Overall I find that there is insufficient evidence to allow any meaningful findings in relation to the financial relationship between the parties.

    Nature of the household

16. I consider the parties’ domestic arrangements and note that there is limited evidence of the parties having lived together. Whilst the fact that the parties normally reside in separate countries is relevant, there is said by the witnesses to have been two months spent together as man and wife in Ethiopia in total. The visa applicant gave vague evidence of living together with the review applicant in a family home occupied by his mother, and travelling together. The visa applicant’s first response was to nominate the various places that the parties had visited in the country. Only when pressed did he agree that their base was his mother’s home. A more consistent account of living under the one roof would be expected. The account is not given great weight as a result.

17. Evidence has been given by the review applicant that she owns property in Australia in her own name and this will be the base for the parties’ life should the relevant visa be granted. However no efforts have been made to include the visa applicant as a part owner. This position was said by the review applicant to be likely to change if and when the visa applicant arrives in Australia. The evidence as to a future household is limited.

18. Whilst the visa applicant stated that he had plans to work as a mechanic and improve his limited English skills, this was put across in only very general terms. A more detailed and thought-out plan is the more likely situation in the case of a genuine planned future household.

19. Whilst there have been only limited opportunities to develop household arrangements throughout the period of the marriage until the present, I do not regard this as strong evidence of a future household that is being planned. More detail and stronger evidence of a future style of household living would be expected. The plans are vague and I would expect a higher level of information here.

    Social aspects

20. There is not strong evidence of the parties representing themselves to others as being married to one another.

21. It is correct that the review applicant stated that she generally informed her workmates of her wedding and the fact that she was married.

22. Whilst there are photographs of the parties and some others in a ceremony, they are not reflective of the 50 plus guest from the review applicant’s side of the family alone said to have attended. Furthermore, there are only a limited number of people in the photographs. There are very few other photographs of the parties together in other situations. This is not evidence greatly reflecting social recognition of spousal relationship and I only give them very limited weight.

23. There appears from the photographs to be only a small number of attendees at the wedding ceremony and a very limited celebration.

24. The parties gave vague and inconsistent estimates of the numbers of people at the wedding ranging from 50 people to 100 to 150 people. Individuals in these circumstances not having a settled number of people in their mind as to numbers their own wedding is unusual. The normal expectation here would be greater accuracy.

25. I give regard to the statutory declaration of the review applicant’s mother on the closeness of the relationship of the parties. Declarations of friends of the parties, Metasbiya Mamo and Daniel Abera, are also couched in somewhat general terms as well and are given lesser weight.

26. I find that there is only very limited evidence of the parties having presented themselves to others as having a genuine spousal relationship.

    Nature of persons’ commitment to each other

27. The parties have been apart for the most part from what they said was the commencement of their relationship. They last saw each other in person in 2014. Their period of being physically together was a total of two months, which is a short period.

28. The parties do however have knowledge of one another’s lives and habits.

29. During the hearing I raised during the review applicant’s oral evidence her account of how a proposal of marriage was made – here her answer was that it was done faced to face. I raised this point in accordance with the section 359AA provisions of the Migration Act. It was pointed out then that the visa applicant, in his interview statement to the Department of Immigration and Border Protection of 23 March 2013, stated that the proposal occurred over the phone before the review applicant arrived in Ethiopia for her second trip.

30. The review applicant’s explanation of the apparent disparity was that it was made when she was on the verge of coming to Ethiopia and that there was not a clear expression on the part of the parties on this point. This response is vague and difficult to follow. A consistent answer from both parties about who proposed and where they were at the time of proposal is not a taxing question. A proposal is an example in life of a significant commitment. A clear answer on its details would be expected in the circumstances.

31. I give regard to the telephone communication entries that have taken place between the parties as submitted to the Tribunal. I give this evidence only limited weight as it is not extensive and leaves out certain months in in 2015- 2016. Records here prior to October 2014 are not evident (there is some limited phone card evidence however for this year). What is presented to the Tribunal is not necessarily suggestive of a long term commitment, or companionship, and emotional support of a long-term nature.

32. I find that there is not strong evidence of long term commitment.

33. Having had regard to the financial aspects, the nature of the household, the social aspects and the nature of the persons' commitment to each other, I consider these findings together do not demonstrate that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, nor do they show that the relationship is genuine and continuing. I am not satisfied that the parties live together and do not live separately and apart on a permanent basis. They therefore do not meet the requirements of s.5F for a spousal relationship.

34. Given these findings the Tribunal is not satisfied that at the time the visa application was made, and at the time of this decision, the parties were in a spousal relationship.

35. Therefore the visa applicant does not meet cl.309.211 and cl.309.221.

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

    DECISION

37. The Tribunal affirms the decision not to grant the visa applicant a Partner (Provisional) (Class UF) visa.

    Justin Meyer
    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).