1605485 (Migration)

[2018] AATA 2472

1605485 (Migration) [2018] AATA 2472 (20 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1605485

MEMBER:Kira Raif

DATE:20 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 20 April 2018 at 10:26am

CATCHWORDS
Migration – Partner (Provisional (Class UF)) visa – Subclass 309 (Spouse (Provisional)) – Whether the parties are in a genuine spousal relationship – Witness credibility – Significant inconsistencies with evidence given in previous applications – Contrived relationship – Relationship entered into in order to secure migration outcome – No evidence of genuine spousal relationship – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5F, 65, 359A
Migration Regulations 1994 (Cth), r 1.15A, Schedule 2, cl 309.211(2), 309.221

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 visa applicant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant is a national of Egypt born in [a particular year]. He applied for the visa on 5 November 2015 on the basis of his relationship with his sponsor. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied the applicant was the spouse of the sponsor. The sponsor (the review applicant) seeks review of the delegate’s decision.

3. The review applicant appeared before the Tribunal on 18 April 2018 to give evidence and present arguments. The Tribunal invited the visa applicant to give evidence by telephone. The review applicant attended the hearing and advised the Tribunal that her husband had suffered a stroke and she preferred for him not to be stressed and not to give evidence. At the commencement of the hearing, the review applicant presented to the Tribunal a medical certificate indicating the visa applicant had suffered a stroke and had difficulties in articulation. The certificate does not refer to the visa applicant’s incapacity to give evidence. Both the visa applicant and the review applicant agreed for the visa applicant to give oral evidence and the Tribunal is satisfied that he had the capacity to do so.

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

   Relevant law

5. At the time the application was made, 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 Regulations.

6. Clauses 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

7. ‘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 a married couple 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 about 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).

   Are the parties validly married?

8. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The visa applicant’s evidence is that he and the sponsor were married in 1985, then divorced in Australia (which he did not consider valid because the divorce was not recognised by the church) and re-married in October 2015. Evidence of marriage has been provided with the application. On the evidence before it, the Tribunal is satisfied 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?

9. Information before the Tribunal indicates that the review applicant was previously granted a protection visa on the basis of her claimed fear of her husband, the visa applicant. The Tribunal considers the information the review applicant gave in her protection visa application to be entirely inconsistent with the information contained in the present application. The information below was the subject of the Tribunal’s correspondence to the review applicant pursuant to s.359A of the Act.

10. The visa applicant provided a statement with his partner visa application dated 29 November 2015 outlining the nature of his relationship with the sponsor. The sponsor also provided a statutory declaration sworn on 29 January 2010 in her protection visa application. The two documents offer very different descriptions of their circumstances and their relationship.

    a.[The applicant] states in his statement that in 2005 the family decided to travel to Australia for the sponsor to pursue her studies and because the sponsor’s family lived in [a particular Australian city]. [The applicant] states that it was a significant financial burden to enable the sponsor’s study in Australia but he agreed to it because the sponsor really wanted to pursue her studies. The sponsor stated in her protection visa application that she travelled to Australia under the influence of her husband with the impression that he will make money.

    b.[The applicant] states in his statement that he and the sponsor had a close and loving relationship until the business failed in Australia. In her protection visa the sponsor refers to her husband physically abusing her and the children and states that she relied on the protection of her family.

    c.[The applicant] states in his statement that he returned to Egypt because of the financial losses over the business in Australia and discord in the family due to the financial pressures. He states that he made frequent calls to the sponsor and pressured her to return to Egypt. The sponsor states in her protection visa declaration that the applicant informed her that he would return to Egypt for a short period without providing her with any justification as to why he would leave her and the children.

    d.[The applicant] states that on many occasions he pressured the sponsor to return to Egypt but she refused. The sponsor stated in her declaration that she pressured her husband to return to Australia and support the family but he refused.

    e.In her declaration the sponsor claimed that her husband refused to let her live outside of Australia and threatened her on various occasions that if she did not return to Egypt he would kill her. The sponsor claims that she and the children were frightened of the applicant. [The applicant] makes no mention of such threats in his statement. He refers to having an ongoing relationship with the children.  

    f.In her statutory declaration the sponsor stated that when she travelled to Egypt in 2009, the applicant entered her house without consent, told her that he was angry about her filing for divorce and told her that he was a believer in Islam. The sponsor stated that the applicant hit her and she reported the matter to the police. She stated that she had to spend several days in hospital. The applicant claims in his statement that his threat of conversion to Islam was not true and was only to pressure the sponsor to return to Egypt. [The applicant] states that after the divorce was granted in 2009 he and the sponsor have not been in contact. [The applicant] makes no mention of the violent incident which the sponsor referred to in her declaration.

    g.The sponsor stated in her declaration that she could not live in Egypt due to the danger inflicted by her husband and his Muslim friends. The sponsor refers to her husband’s brutality and strong relations with the Muslim community. The sponsor claims that the applicant was greatly influenced by Islamic groups. In her interview with the Refugee Review Tribunal (RRT) the sponsor stated that when she visited Egypt in 2009, her husband was wearing Islamic robes and had his head covered. The applicant states in his statement that he continued to be a Christian and his threat of conversion to Islam was only a threat to pressure the sponsor to return to Egypt.  He refers to his ongoing dealings with the church and states that he did not believe the divorce to be valid because it was not recognised by the church, implying ongoing commitment to the Christian faith. He does not claim to have ever converted to Islam, nor to have been influenced by the Islamic groups, nor to change his appearance.

    h.The sponsor attended an interview with an Immigration officer in relation to her protection visa application. In that interview she stated that she started experiencing problems with her husband a few months into the marriage. The sponsor stated that her husband was mean with money and was rough with children and tried to force her to have an abortion and had extra-marital relationships. The sponsor stated that she wanted to separate but stayed with him for the sake of the children. [The applicant] states in his statement that they ‘lived a life full of happiness and passion’ and had no marital problems.

    i.The sponsor stated during her RRT hearing in relation to the protection visa that after she returned to Australia in 2009, the visa applicant arranged to send her threatening messages and letters and continued to call her family. In his statement [The applicant] states that since 2009 he ceased all contact with the sponsor but only had contact with his children.

    j.The sponsor told the RRT in her protection visa hearing that [Father A] spoke to her husband in May 2010 and told her that the visa applicant had definitely converted to Islam and that if she returned to Egypt, he would expect the sponsor to convert as well. [The applicant] states in his statement that he maintained his involvement with the church and his conversion to Islam was only a threat to put pressure on his wife.

    k.The sponsor told the RRT in her protection visa hearing that her marriage was extremely violent and that her husband would hit her and the children until she would bleed. On one occasion she claims the visa applicant [seriously injured one of their children]. The sponsor stated that she went to live with her family for seven months before migrating to Australia to be away from her husband. [The applicant] refers in his statement to having a life full of happiness and passion with no marital problems.

11. Essentially, information before the Tribunal indicates that after the sponsor was unsuccessful in her skilled visa application, she made an application for the protection visa claiming to be fearful of her husband. At the time the review applicant had no other options to remain in Australia other than to seek protection, she claimed the basis of that application to be abuse from her husband. She was granted a protection visa on the basis of being afraid of, and abused by, her husband and on the basis that her husband has converted to Islam and expected her to do the same. Yet the sponsor re-married her husband as soon as she was granted the Australian citizenship (when there was no risk of her protection visa being cancelled) and almost immediately sponsored her husband for the partner visa in which he states that they always had a good relationship.

12. In her written response to the Tribunal’s s.359A letter, dated 4 April 2018, the review applicant reiterates the evidence she provided in her protection visa application. The review applicant does not explain why the visa applicant’s evidence submitted with his partner visa application was substantially different and inconsistent with her own evidence.

13. In oral evidence the review applicant repeatedly told the Tribunal that her evidence in the protection visa was true and that the visa applicant would not mention these matters because he did not want to. However, the issue is not only that the visa applicant failed to provide all relevant details in his application. There are significant inconsistencies in their evidence – for example, whether the visa applicant converted to Islam and whether there was contact between parties after 2009 – and these suggest that the parties are not being truthful in their claims. The review applicant repeatedly told the Tribunal that the visa applicant is a changed man but the Tribunal’s concern is not only with the past events but with the inconsistencies in the present visa application. The review applicant’s claim that her husband is now a better person does not address these concerns.

14. The sponsor also provided a statement with the visa applicant’s partner visa application. In that statement she claims that because of financial problems, there was discord between her and her husband and he decided to travel to Egypt and this led to their separation. The sponsor states that with the help of the church and the family they have reconciled. She makes no mention in that statement of any of the matters she referred to in her protection visa application.

15. The visa applicant was interviewed by the delegate during the processing of his partner visa application. According to the record of the interview, the visa applicant did not know how the sponsor obtained her Australian permanent residence. He also stated that he did not see the sponsor between 2007 and 2013 and although he knew that she returned to Egypt during that period, they did not meet. That contradicts entirely the review applicant’s evidence in her protection visa when she claims that her husband came to her home and assaulted her, requiring hospitalisation, threatened her on occasions and forcefully prevented her departure from the country during her 2009 trip to Egypt. The applicant’s evidence also contradicts the sponsor’s protection visa claim that during the 2009 visit to Egypt she observed her husband wearing Islamic dress.

16. The visa applicant subsequently provided a written statement to the delegate stating that he was ‘too afraid’ to mention his meeting with his wife in 2009 because they had problems and he did not want it to adversely affect his application. The visa applicant’s evidence suggests that he knowingly and deliberately gave false information in his interview in order to improve his chances of obtaining the visa.

17. Having regard to that information, the Tribunal has formed the view that the visa applicant and the review applicant are not persons of credibility. The Tribunal considers there is a strong likelihood that the review applicant had falsified her claims made in the protection visa application and [the applicant] falsified the evidence in his partner visa application in order to obtain the Australian visas. The Tribunal finds their claims opportunistic and finds that they are willing to provide any information that would suit their needs.

18. Further, according to the information on the Department of Immigration’s file, the review applicant was previously refused the subclass 485 visa because she submitted a fraudulently altered IELTS certificate. In oral evidence to the Tribunal the review applicant explained that she wanted to extend her stay in Australia and a friend suggested that she should create an IELTS test result on the computer. She said she knew it would be rejected but she needed more time, so she created that document. The review applicant’s evidence is that she intentionally and willingly created a fraudulent document and submitted that document to the Tribunal in order to remain in Australia because she did not want to return to Egypt. The review applicant’s evidence supports the Tribunal’s view that the review applicant is not a person of credibility and that she is willing to submit false claims and information for the benefit of the visa.

19. The applicant told the Tribunal that she ‘was not sure’ if she informed Centrelink about the re-marriage because she has been separated for a long time. She said that Centrelink is aware of the marriage but also believes she is a single mother because of the separation. However the parties claim that they have remarried from 2015 and are in a committed relationship at least from that time. The review applicant confirmed in oral evidence to the Tribunal that she has not informed Centrelink about that relationship because ‘it did not occur to her’. The Tribunal finds that the applicant has not been truthful either with Centrelink when claiming to be separated or with the Department when claiming to have resumed her relationship with the visa applicant.

20. The Tribunal finds that the parties are not credible witnesses and that they are willing to provide any untruthful information in order to obtain a favourable migration outcome. The Tribunal acknowledges that it is possible to have a genuine and committed relationship despite poor credibility but in the circumstances of this case, the Tribunal does not accept such a relationship exists. Rather, the Tribunal has formed the view that the parties have falsified information about the present relationship to enable the visa applicant’s migration to Australia.

21. The review applicant’s evidence to the Tribunal is that during her 2009 visit to Egypt, the visa applicant had been violent towards her. She said that after she returned to Australia, the visa applicant continued to threaten her by phone and letters and eventually she changed her phone number and the contact stopped. The visa applicant also told the Tribunal that there was violence in the relationship, including during the 2009 visit, although his evidence on the issue was quite vague. Yet, the parties suggest that when the review applicant travelled to Egypt, and having spent very little time with the visa applicant, she accepted that he had changed and that he was a better person and almost immediately decided to re-marry the visa applicant and to form a committed relationship with him. The Tribunal does not consider that description of events to be truthful or plausible.

22. The review applicant’s evidence to the Tribunal is that there was no relationship between them after the visa applicant left Australia and by 2009 the relationship was very abusive. If that evidence is accepted, the Tribunal finds that there was no relationship between the parties by 2009. The review applicant’s evidence is that they reconciled during her 2015 visit to Egypt. The review applicant said that she stayed in Egypt for about two weeks and they reconciled in that period. That is, the parties have spent, at best, two weeks in each other’s company since resuming the relationship. The Tribunal does not consider this to be a lengthy period. The review applicant explains she cannot take her daughter to Egypt and cannot travel without her daughter. The Tribunal finds the parties have spent very little time together since they claim their relationship resumed. The Tribunal is not satisfied the parties have established a joint household. The Tribunal is not satisfied the parties share housework or share living arrangements. The review applicant claims that the visa applicant speaks to the children and is close to his daughter but her evidence is that they have never met in person. The Tribunal is prepared to accept that there is communication between the visa applicant and his children but the Tribunal is not satisfied he shares responsibility for care and support of the children.

1. The review applicant and the visa applicant told the Tribunal that the visa applicant gives money to her parents to pass on to her. They claim it is a family arrangement and there is no evidence of such transfers. In the absence of any documentary evidence of financial transfers, and having found the parties not to be credible witnesses, the Tribunal is not satisfied that such transfers occurred and, even if they did, that the transfers represent the visa applicant’s willingness to provide financial support to his partner, rather than a business arrangement between the visa applicant and her parents. The review applicant also said that the visa applicant sends gifts to her and the children. The Tribunal is not satisfied on the limited evidence before it that the parties have joint ownership of assets or joint liabilities. The Tribunal is not satisfied they pool financial resources. The Tribunal is not satisfied there are legal obligations owed to the other party. The Tribunal is not satisfied there is any sharing of day-to-day household expenses.

2. The review applicant said that the relationship is known to their families, the church and some friends. There is very little evidence to indicate that this is so. The review applicant provided to the Tribunal a small number of statements and the Tribunal accepts that those who provided the statements are aware of the relationship. The Tribunal finds that at best, the parties’ representation of their relationship to others is very limited. The Tribunal is not satisfied that friends and acquaintances believe the parties to be in a genuine and committed relationship. The parties have spent very little time together since they claim to have reconciled and the Tribunal does not accept the applicant and sponsor plan and undertake joint social activities.

3. With respect to commitment, the review applicant told the Tribunal that she believes the visa applicant has changed. She said the church advocates that they cannot divorce and under the church law they are still married and the priest wanted them to be together. Also, their youngest child wants to see her father. The Tribunal has formed the view that the present sponsorship is an arrangement of convenience rather than reflective of the mutual commitment of the parties. The Tribunal is not satisfied such commitment exists. The Tribunal accepts the parties may communicate by Viber but the Tribunal is not satisfied the parties provide each other with companionship or emotional support. The Tribunal is not satisfied the parties see their relationship as a long term one.

4. Overall, the Tribunal is not satisfied the applicant and the sponsor have a mutual commitment to a shared life as husband and wife to the exclusion of all others. The Tribunal is not satisfied their relationship is genuine and continuing. The Tribunal is not satisfied they live together or not apart on a permanent basis. The Tribunal is not satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision. Therefore the visa applicant does not meet cl.309.211 and cl.309.221.

   Conclusion

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

   DECISION

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

   Kira Raif
   Senior Member