1604331 (Migration)

[2016] AATA 4543

1604331 (Migration) [2016] AATA 4543 (19 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Helen Daniel Getachew

CASE NUMBER:  1604331

DIBP REFERENCE(S):  clf2012/154652

MEMBER:Carolyn Wilson

DATE:19 October 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 19 October 2016 at 3:18pm

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 10 March 2016 to refuse to grant the applicant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 25 July 2012 on the basis of her relationship with her sponsor. At that time, Class BS contained only one subclass: Subclass 801 (Partner). The criteria for the grant of this visa are set out in Part 801 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.801.221.

3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.801.221 because the applicant did not respond to requests from the delegate to provide current evidence of a spousal relationship, and therefore there was no evidence before the delegate to demonstrate the applicant and sponsor continued to be in a spousal relationship.

4. The applicant appeared before the Tribunal on 19 October 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Amharic and English languages.  The applicant had included on the ‘response to hearing invitation’ form the names of two friends who could give evidence, however neither friend attended the hearing with her.  Of note, the applicant did not provide the sponsor as a witness.  The Tribunal asked if it could telephone the sponsor, however after a number of attempts, it was not possible to get a telephone call through to him.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the visa applicant and sponsor are in a spousal relationship.

   Whether the parties are in a spouse or de facto relationship

7. Relevantly to this matter, cl.801.221(2)(c) requires that at the time of this decision, the applicant is the spouse of the ‘sponsoring partner’, who must be an Australian citizen or Australian permanent resident or an eligible New Zealand citizen who was specified in the related Subclass 820 visa application as the spouse or de facto partner of the applicant. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen and was identified in the Subclass 820 visa application. On the evidence before it, the Tribunal is satisfied that the sponsor is the ‘sponsoring partner’ of the applicant.

8. ‘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 sponsor’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?

9. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The applicant provided a copy of a marriage certificate from the Registry of Births, Deaths and Marriages, Perth, dated 3 July 2012.  The certificate shows they were married in Ashfield, Western Australia on 27 June 2012. 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?

10. The applicant and sponsor claim to have met in Ethiopia in 2007.  The applicant was sponsored on a Prospective Marriage visa and entered Australia in November 2011.  The applicant was granted a (Temporary) Partner (Subclass 820) visa on 30 July 2012. 

11. The sponsor left Australia in May 2013 to work in his farming business in Ethiopia.  He has not returned to Australia since that time.  The applicant has not travelled to Ethiopia.  They have not seen each other since May 2013.

12. In 2014 and 2015 the delegate wrote to the applicant a number of times inviting her to provide information to process the visa in issue, that is, the (Permanent) Partner (Subclass 801) visa.  The applicant did not respond and no documentary evidence of an ongoing spousal relationship was provided to the Department. 

13. On review, the applicant asserts she did not receive the letters requesting information from the Department because she had changed address.  She provided some written submissions and letters of support from friends to the Tribunal.  No statement or documents from the sponsor were provided.  No documentary evidence in support of an ongoing spousal relationship was provided.

14. In relation to the financial aspects of the relationship, the applicant says she and the sponsor do not have any joint assets or liabilities.  She says they would like to buy a house when the sponsor returns to Australia.  The applicant provided evidence to the Tribunal that she is in financial difficulty, asking for a fee reduction, and for her application to  be prioritised as her Centrelink payments had ceased.  She gave evidence that the sponsor does not provide her with any financial support.  The Tribunal gives this considerable weight as an indicator the relationship is not genuine and continuing.  That is, the applicant is in financial difficulty yet the sponsor does not send her any money to assist her.

15. In relation to the nature of the household, the parties are living in separate countries and therefore maintain separate households.  The applicant says she shares a house with a girl that she has lived with since the sponsor left. The applicant has stated that before the sponsor left they lived together and shared the housework.  However, no corroborating evidence was provided to show the parties ever shared a household (such as a lease, household bills and the like), and the Tribunal is concerned about the length of time the parties have lived apart.

16. In relation to the social aspects of the relationship, the applicant and sponsor have not socialised for more than three years.  The applicant provided a number of statements from friends in Western Australia who say they recognise the applicant and sponsor as a married couple.  The Tribunal has given these statements little weight, given its concerns over the length of time the parties have lived apart. 

17. In relation to the nature of the commitment to each other, the Tribunal finds that in the 4 years since the parties married they have spent more than three years apart.  The Tribunal considers this is evidence they are not committed to each other.  The sponsor has not returned to Australia to visit the applicant, nor has she travelled to Ethiopia to be with the sponsor.  The applicant claims to maintain frequent contact with the sponsor, and that he will return soon to be with her in Australia.  There was no evidence from the sponsor, such as a statement or statutory declaration, to support this assertion.  The Tribunal does not accept there is any credible evidence before it that the sponsor is returning to Australia in the foreseeable future.

18. The Tribunal finds the applicant and sponsor are living separate lives, in separate households, in different countries.  The Tribunal considers that after more than three years of living apart, they appear to be living separately and apart on a permanent basis.  Even if the Tribunal were to accept the applicant’s assertion that the sponsor plans to return, the Tribunal finds the lack of financial support for the applicant, and the length of time the parties have been apart, raise concerns such that the Tribunal is not satisfied they have a mutual commitment to a shared life, or that the relationship is genuine and continuing. 

19. Given these findings the Tribunal is not satisfied that at the time of this decision the parties are in a spousal relationship. Therefore the applicant does not meet cl.801.221(2)(c).

20. Furthermore, the applicant has not claimed, and there is no evidence before the Tribunal, that the applicant meets the alternative criteria in cl.801.221 (2A), (3), (4), (5) or (6).

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

    DECISION

22. The Tribunal affirms the decision not to grant the applicant a Partner (Residence) (Class BS) visa.

    Carolyn Wilson
    Member

    
    

    ATTACHMENT - Extract from Migration Regulations 1994

    1.15A     Spouse

    (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).