1703187 (Migration)

[2018] AATA 455

1703187 (Migration) [2018] AATA 455 (17 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1703187

DIBP REFERENCE(S):  BCC2015/3417609

MEMBER:Peter Emmerton

DATE:17 January 2018

PLACE OF DECISION:  Adelaide

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 Statement made on 17 January 2018 at 11:52am

CATCHWORDS
Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Separated due to civil conflict –  Long term geographic separation – Attempted to reunite as quickly as possible once contact was re-established  – Shared the costs associated with the travel undertaken by the sponsor – Communicates with spouse and children regularly – Credible and persuasive witnesses  Genuine spousal relationship

LEGISLATION

Migration Act 1958, ss 5F, 65,
Migration Regulations 1994, r.1.15A, Schedule 2 cls 309.211, 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 18 January 2017 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 19 November 2015 on the basis of his relationship with his 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 because the delegate was not satisfied that the couple were in a genuine spousal relationship.

4. The review applicant appeared before the Tribunal on 16 January 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant via telephone and a witness [via] telephone. In addition two of the couple’s teenage children gave evidence before the [Tribunal].

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the couple are in a genuine spousal relationship as defined by section 5F of the Act.

8. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in so doing, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

9. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the Department.

   Whether the parties are in a spouse or de facto relationship

10. 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.

11. ‘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 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), which is extracted in the attachment to this decision.

    Are the parties validly married?

12. If the parties are validly married, they may meet the requirements of a spousal relationship, but not a de facto relationship. The Tribunal accepts the Somali Republic Marriage Certificate, Registration Number 81214, dated 01/11/1990, as proof of the couple’s marriage. 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?

13. In forming an opinion whether they are in a spousal relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects, 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 which is attached to this decision.

14. The applicant lodged a valid application for a Class UF Partner (Provisional) and BC Partner (Migrant) visa on 19 November 2015 on the grounds of being in a spousal relationship with an Australian [citizen].

15. The visa applicant is a [age] year old male born in Somalia, he is a permanent resident of [Country 1] and is currently living in [Country 1].

16. The couple were married in 1990 and lived as husband and wife until the visa applicant was assaulted and kidnapped in Mogadishu in 2002.

17. He has been resident in [Country 1] since 2010, following his escape from captivity in 2008 and subsequent escape from Somalia via people smugglers.

18. The sponsor is a [age] female born in Somalia who entered Australia with her [children], under a Woman at Risk visa on 16 September 2009.

19. The sponsor heard no news of her husband’s whereabouts, was unable to locate him and as the security situation in Mogadishu deteriorated she and her children fled to Egypt in 2006.

20. In early 2014 a chance meeting took place between the sponsor’s cousin and the visa applicant whilst they were both attending a wedding in [Country 1]. The cousin then passed on his contact details to the sponsor who subsequently called him and they were able to make contact. The cousin was unable to provide the sponsor’s details to the visa applicant at the wedding as she was not travelling with her own mobile phone as it was being repaired.

21. The visa applicant applied for a visitor visa to visit his family in June 2015 which was declined. The sponsor then travelled to [Country 1] to visit the visa applicant from 15 September 2015 until 28 October 2015. They then lodged an application for a partner visa in November 2015.

22. According to department records the visa applicant has not travelled to Australia.

23. The Tribunal has considered the documentary evidence provided to the Department and the Tribunal. The Tribunal, as previously stated, has had the benefit of taking oral evidence from the sponsor and two of her teenage children at the hearing, as well as oral evidence via telephone from the visa applicant and a [witness]. The Tribunal found all those presenting evidence to be credible and persuasive witnesses. Answers were provided in what appeared to be an honest and candid fashion without any apparent obfuscation or collusion. The Tribunal has considered all aspects of the relationship.

24. In relation to the financial aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

25. Any joint ownership of real estate or other major assets. The Tribunal has determined that the couple do not jointly own any major assets or real estate. The Tribunal finds this understandable in light of the long term geographic separation and modest government subsidised incomes received by both parties.

26. The Tribunal received no evidence that the couple have any joint liabilities.

27. The extent of any pooling of financial resources, especially in relation to major financial commitments.  Evidence was presented showing the transfer of AUD$1,200 on 20 May 2014 from the sponsor to the visa applicant and a series of payments totalling AUD$1,700 from the sponsor to the visa applicant’s aging father from February 2015 until August 2017. The visa applicant requested that payments to him cease as he had sufficient income from the [Country 1] government and the money would be better spent on their children. The visa applicant has in addition recently commenced a modest lawn mowing / gardening job. The Tribunal notes the ongoing modest payments to the visa applicant’s father as substantial evidence of financial resource pooling as she is taking on family responsibility for her husband’s infirm father.

28. The Tribunal was provided with receipts totalling AUD$2,100 evidencing three transfers from the visa applicant to the sponsor and his family between July 2017 and December 2017. These commenced after the visa applicant was employed and no longer solely dependent upon government subsidies.

29. Whether one person in the relationship owes any legal obligation in respect of the other. The Tribunal has determined that aside from the usual legal obligations associated with a marriage, the couple have not established any evidence to indicate additional legal obligations.

30. The basis of any sharing of day-to-day household expenses. The Tribunal has established that the couple have shared the costs associated with the travel undertaken by the sponsor in 2015. The visa applicant substantially covered the day-to-day living expenses, utilities, domestic transportation and accommodation costs, whilst the sponsor paid for her airfare and some living expenses.

31. The Tribunal places substantial weight on the cumulative evidence in support of the financial aspects of the relationship.

32. In relation to the nature of the household aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

33. Any joint responsibility for the care of children. The Tribunal has determined that the visa applicant’s children live with his wife in Australia whilst he lives in [Country 1] and he has been prohibited from visiting Australia. He has no custody of his children due to geographic separation, therefore no meaningful sharing of parenting responsibilities is possible with the sponsor. Any parenting that may take place is via electronic communication which occurs on a regular basis. This communication was verified by the couple’s two teenage children who gave evidence at the Hearing.

34. The living arrangements of the visa applicant and the sponsor have been challenging. The visa applicant was kidnapped and held captive for six years in Somalia. His wife and family subsequently came to Australia as refugees. The visa applicant eventually escaped and was accepted by [Country 1] as a refugee and moved there in 2010. Neither of the couple knew the whereabouts of each or if they were still alive. The Tribunal is satisfied that both parties tried to locate the other and notes that they immediately tried to reunite once they were in contact with each other. This reestablishment of communication followed a chance meeting between the visa applicant and his wife’s cousin at a wedding, resulting in a telephone number being supplied to the sponsor, who then made telephone contact. The apparent reason for not cohabiting appears to the Tribunal to be solely as a result of external forces, not choice. This was reinforced by the witnesses’ testimony.

35. Any sharing of responsibility for housework. The Tribunal acknowledges the department’s view that some household responsibility was shared when they reunited for six weeks in 2015. It is not reasonable, in the Tribunal’s view, to expect any additional sharing when taking into consideration their forced separation over a substantial period of years.

36. The Tribunal places moderate weight on the cumulative evidence presented in relation to the nature of the household.

37. In relation to the social aspects of the relationship between the applicant and the sponsor, the Tribunal has considered the following.

38. Whether the persons represent themselves to other people as being married to each other. The couple’s two teenage children, who gave evidence before the Tribunal, clearly demonstrated their belief that their mother and father were looking to be reunited. They testified that they were pleased to see their mother happy and it was self-evident that the couple presented themselves as genuine spouses to their children. This was further reinforced by their Statutory Declarations presented to the Tribunal.

39. Letters of support from leaders in the Somali community in Australia and [Country 1] indicate their belief that the couple are in a genuine spousal relationship and keen to reunite the family unit.

40. The opinion of the persons’ friends and acquaintances about the nature of the relationship. The Tribunal has determined that the additional photographs provided to it, of the couple’s wedding in 1990, show that the community in which they were living believed them to be a married couple. The copy of the original Wedding Certificate, obtained by the visa applicant’s father adds further weight to the belief of the genuine spousal relationship by those people who know them.

41. Any basis on which the persons plan and undertake joint social activities. Other than a brief six week period in 2015 when the couple were physically co-located in [Country 1], social activities were not possible.

42. The Tribunal places substantial weight upon the cumulative evidence provided in support of the social aspects of their relationship.

43. In relation to the nature of the persons’ commitment to each other, the Tribunal has considered the following.

44. The duration of the relationship. The Tribunal accepts the evidence that the couple were married in 1990 and were forcefully separated when the visa applicant was kidnapped in Mogadishu in 2002. Prior to his kidnapping the visa applicant had fathered three children, the youngest he was unaware of, as his wife discovered her pregnancy post his abduction. They resided as a family unit until 2002 and would have continued to do so had nefarious forces not intervened. The delegate was concerned that insufficient effort had been made by either party to locate the other. The tribunal was presented with evidence from the couple and witnesses testifying to the substantial efforts made. The Tribunal has also taken into account the circumstances of a war ravaged country, the violent abduction resulting in the estrangement and the capacity of two people to re-establish control of their lives with limited resources, education and sophistication. It is also noted that the sponsor was a single parent caring for five children, two of whom she rescued from an uncertain fate and she subsequently lead the re-established of their lives as refugees in a foreign culture.

45. Neither party had remarried as their belief system reinforced the view that they were still married even if one of the couple had perished. The Tribunal notes the speed with which they attempted to reunite once contact was re-established. It also notes that when immediate permanent relocation wasn’t possible a meeting was organised as soon as practicable within financial and immigration constraints.

46. The length of time they have lived together. The tribunal notes that the couple have lived together as man and wife for twelve years until forcefully separated. As stated above they then attempted to reunite as quickly as possible once contact was re-established.

47. The degree of companionship and emotional support that the persons draw from each other. The Tribunal was convinced by the testimony of the couple, which was supported by witness testimony that the relationship is mutually emotionally nourishing. They had discussed the options available to them should the visa applicants application fail and had placed the children’s needs above their own. The Tribunal is of the view that this is as you would expect a mature couple focussed upon their family responsibilities to act.

48. The Tribunal determines that the various pieces of evidence provided to demonstrate ongoing communication between the visa applicant and the sponsor and her family, coupled with the evidence provided by the witnesses as to the very regular nature of the communications, further strengthen the body of evidence supporting the genuineness of this relationship.

49. The Tribunal places substantial weight upon the cumulative evidence provided in support of the couple’s commitment to each other.

50. On the basis of the above the Tribunal is satisfied that the requirements of s.5F(2) are met at the time the visa application was made and the time of this decision.

51. Therefore the visa applicant meets cl.309.211 and cl.309.221.

52. 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

53. 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 309.211 (Partner (Provisional)) visa:

    ·cl.309.211 of Schedule 2 to the Regulations

    ·cl.309.221 of Schedule 2 to the Regulations

    Peter Emmerton
    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).