1706602 (Migration)

[2019] AATA 5299

1706602 (Migration) [2019] AATA 5299 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1706602

MEMBER:Peter Vlahos

DATE:9 October 2019

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

Statement made on 09 October 2019 at 6:35am

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – validity of marriage with sponsor – status of visa applicant’s previous marriage – solemnised and recognised as valid under local laws – financial aspect – household arrangements – extensive telephone logs/records – social aspects – size of wedding – commitment to relationship – decision under review remitted

LEGISLATION
Marriage Act 1961 (Cth), ss 88C, 88E
Migration Act 1958 (Cth), ss 5F, 12, 65
Migration Regulations 1994 (Cth), r 1.15A; Schedule 2, cls 309.211, 309.221

CASES
He v MIBP [2017] FCAFC 206

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 23 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 14 December 2015 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.

3. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the applicant does not meet the definition of spouse in s.5F of the Act or s.5CB of the Act, or of a person who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.  

4. The review applicant appeared before the Tribunal on 12 September 2019 to give evidence and present arguments. The Tribunal also received evidence from the [visa applicant].

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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

7. 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.

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 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), which is extracted in the attachment to this decision. Each of the specific matters contained in r.1.15A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.

   Background

9. The review applicant (the sponsor), the ‘applicant’ in these proceedings is originally from Ethiopia and he arrived in Australia in 2009 as the fiancé to another person.[1] He has family living in Ethiopia. His family consists of his elderly mother, [and a number of siblings] of varying ages and not all are married. The applicant explained to the Tribunal that his ‘ex-wife’ brought him to Australia with the intention of marrying him.

   [1] The review applicant in his application forms declared a previous marriage to [Ms A] which ended [in] 2014. A divorce certificate was provided to the Department.

10. The two married in 2010, but divorced in 2014 and the applicant’s former marriage produced three children. The applicant has no communication with his former wife. His children at times reside with him for specific period of time but not for extended periods of time preferring, to remain with the applicant’s former wife.

11. The Applicant also told the Tribunal that he provides maintenance to his former wife for his children.

    How did the applicant meet his second wife, the applicant?

12. The Tribunal was told that he and current wife ‘meet through a friend’ who made arrangements for the two have each other’s contact details and thereafter, the applicant made his own arrangements to meet his wife. Their initial meeting was at a local coffee shop for coffee and a social discussion – with the purpose of meeting each other.

13. This first meeting occurred in 2014 while the Applicant was in Ethiopia on holidays. Thereafter, the Tribunal was told that the two met regularly in various social environments and the two had the opportunity to discuss serious life matters and to exchange various views which caused each other to develop a serious interest in making their ‘relationship’ ‘serious’.

14. Before leaving for Australia, the applicant approached his wife and made it known to her his intentions for her – asking her to marry him. To his delight his intentions were not refused but accepted and the Tribunal was told that the two married in Ethiopia[2] and then, the applicant left for Australia.

    [2] Department of Immigration and Border Protection File [number] Folio [55] Marriage certificate

15. Prior to leaving Ethiopia for Australia, the applicant met with his (current) wife’s family – her mother, brothers and sisters and the Tribunal was told that his wife’s family accepted him and were delighted with the marriage having occurred.

16. The Tribunal was also told by the applicant that his current wife (subject to the spousal sponsorship application) was ‘previously married’ to another man. That ‘marriage’ the Tribunal was told had ended and his wife has had no contact with her former husband who had ‘exited’ the ‘country’. The applicant’s wife did not have any children with her former husband.

17. The applicant told the Tribunal that his wife had no other relationship with any other person except himself and that she had ‘divorced’ as allowed for under the law with regulates family issues in Ethiopia.

    Are the parties validly married?

18. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. In the delegate’s decision record, it was stated that the applicant’s current wife ‘did not declare a previous marriage’ or ‘de facto relationship’. The delegate went on to state that ‘department checks’ revealed that the applicant’s wife had an application lodged at the OHPC with the allocated file [number]. The primary applicant on the past application was [Mr B] and included in that application was [Alias 1] (DOB [Date 1]). That information was further reviewed by the delegate and it was found that the dependant applicant and primary applicant on the past application and this application ‘is one and the same person.’ The delegate further noted that in the past application, the spouse [Mr B] was in contact with the Department in May 2013, which led the delegate to conclude ‘their relationship was active at the time’.

19. On 24 May 2016, a natural justice letter was sent to the applicant outlining the Department’s concerns that the ‘relationship’ between the sponsor (review applicant) and the applicant was ‘not mutually exclusive.’ The applicant was also informed that the Department ‘could not be satisfied’ in the absence of documentary proof, that her marriage to [Mr B] had been terminated and that therefore, it did ‘appear she [was] still married to [Mr B]’.

20. On 23 June 2016, the applicant (wife) responded telling the Department that the fact that she was still married to another person ‘is incorrect’. However, she did admit that she was married to [Mr B in] April 2010 but (according to her) ‘that marriage was technically annulled’, before her marriage to her current husband and sponsor. She went on to tell the Department that when she discovered she was still married to [Mr B], she ‘filed an application for annulment of that marriage at a court in Ethiopia’ citing ‘bigamy’ as a ground for the marriage’s annulment.

21. Also, in the lead up to her marriage to the sponsor, the wife, sought legal advice on ‘how to obtain a certificate verifying that [she] was free to get married as was required under Ethiopian law.’ The legal advice provided to the Department purported to be from an Ethiopian family lawyer which advised that ‘…if one of the spouses [was] absent from the marriage for [an] extended period …the marriage [was] considered to have been dissolved as far as the law [was] concerned.’ The wife did not accept that she was involved in ‘two marriages’ and was not in ‘de facto relationship’ prior to her marriage to her current husband and sponsor.

22. Also, the applicant’s wife stated that she had ‘not amended [her] identity for the purpose of migrating to Australia’ but in order ‘to protect [herself] from any potential violence that could come from [her former husband] [Mr B], his family members and friends.’

23. The applicant’s wife also tendered a ‘Legal Opinion’ from an Ethiopian lawyer, who basically acknowledged and supported the claims of the wife with regards to her marriage issues. However, the Department determined that the applicant’s wife acknowledged her ‘second marriage’ and no document had been issued by a legal authority in Ethiopia verifying the separation of the wife from her first husband ([Mr B]). The Department also determined that the wife had knowingly concealed this first marriage when she applied for her [present] spouse visa and do so by changing ‘her name.’ The wife also was found by the Department to have ‘deliberately omitted information in regards to her marital status.’ Moreover, she did not provide to Department evidence that she was in an ongoing and genuine relationship with her sponsor.

24. The Department concluded that if a valid marriage was not in existence, a possibility of a de facto relationship could exist ‘where a person is legally married to another person.’[3] Nevertheless, the Department did not conclude that a de fact relationship was in existence between the applicant and his wife because the two had not demonstrated ‘joint responsibility for the care and support of any dependent children, or any sharing of responsibility for a household.’[4]

    [3] AAT File, see Department decision  folio [24]

    [4] Ibid, see Folio [24]

25. The Tribunal noted the Department’s concerns on the issue of whether the applicant and her sponsor were actually married and therefore to be considered husband and wife. On the Department’s file, there is a copy of the parties’ marriage certificate which is dated 4 November 2014 and that same document also records the fact – that the marriage was solemnised by an authorised ‘civil officer’ and the ‘marriage’ had been ‘registered’ in the ‘office of Addis Ababa City Government Acts and Civil status Documents Registrar.’[5]

    [5] see Department’s file, folio [55] marriage certificate.

26. It should be pointed out here, that for purpose of deciding whether a marriage is to be recognised as valid for the purposes of the Act, s.12 of the Act provides that Part VA of the Marriage Act 1961 (the Marriage Act) applies as if s.88E of the Marriage Act were omitted. Subject to certain exceptions not relevant to the present matter, foreign marriages recognised under local civil law in the country where they are solemnized will be recognised in Australia under Part VA of the Marriage Act. Specifically, the Tribunal notes that s.88C(1)(a) of the Marriage Act states that Part VA applies to marriages solemnised in a foreign country where ‘under the local law the marriage was, at the time when it was solemnised, recognised as valid’ (emphasis added).

27. In the present case, the review applicant informed the Tribunal that he and the visa applicant were married in Addis Ababa [in] November 2014. The Tribunal has been provided with evidence of the marriage in the form of a certified and signed copy of the marriage certificate (the same as provided to the Department). There is no information before the Tribunal to indicate that this is not a genuine and true document and that it was not issued by the Ethiopian authorities other than in accordance with the Revised Family Code.[6]

    [6] The Revised Family Code, Federal Negarit Gazetta Extraordinary Issue No.1/2000 The Revised Family Code Proclamation  No.213/2000, Addis Ababa 4^th Day of July 2000

28. Therefore, the Tribunal finds that the parties are married to each other under a marriage that is valid for the purposes of the Act and that the marriage was solemnised on [specified date in] November 2014 (the date stated on the registered certificate of marriage. The Tribunal also finds that, on the evidence before it, that the legally significant date for the purposes of the Act is [specified date in] November 2014, the date upon which the marriage was solemnised and from which time the marriage was recognised as valid in Ethiopia.  

29. 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 spouse relationship met?

30. The Tribunal has had the benefit of seeing material and hearing evidence that had not been provided by the parties to the delegate. This information includes a detailed statement submitted by the parties concerning their relationship and the opportunity presented to the Tribunal to examine in detail the issues this information addressed as far as it concerned the financial aspects of the parties’ relationship with each other.

    Financial aspects of the parties’ relationship

31. Both parties in their evidence before the Tribunal conceded that the financial aspect of their relationship was minimal. Both sponsor and applicant pointed out in their evidence (the sponsor in evidence before the Tribunal and the applicant in written form) that it had been ‘impracticable’ for them to have joint ownership of property or other assets as well as having the responsibility for joint liabilities as [they] lived in ‘different countries’. The Tribunal accepts this explanation of the present state of the financial relationship between the parties.

32. In terms of the combination of the parties’ financial resources from the evidence submitted to the Tribunal by both parties, the greater portion of any expenses that would be considered an ‘expense’ caused because of the relationship, it too, was borne by the sponsor (for example, spouse application fees, and fees to the Tribunal for the appeal). Both parties told the Tribunal if their circumstances otherwise permitted them to be closer and not at a distance, they would have had the opportunity to do otherwise as far as it concerned the pooling of the financial resources. The Tribunal accepts this explanation as both genuine and aptly describes the circumstances that exist between the parties.

33. Therefore, as the review applicant (the sponsor) and the applicant live in separate countries, the Tribunal acknowledges the collective difficulty of attempting to combine the financial affair, joint ownership of any assets and the pooling of financial resources. The Tribunal attaches (for the reasons stated) little weight to this factor in its determination of this review application.

    Nature of the household

34. In assessing the genuine nature of a relationship, consideration must be given to all circumstances of a relationship including any joint responsibility for the care and support of children, living arrangements of the parties and any sharing of responsibility for housework.

35. The delegate in his decision record noted that the parties did not provide any evidence that they cohabitated during the sponsor’s visits to Ethiopia. Further, the delegate noted that there was no evidence that the ‘parties met after the sponsor’s leaving Ethiopia for Australia and before their wedding in November 2014. The delegate also highlighted the fact that the parties’ wedding was held in a ‘household setting’ and that there was no evidence that they ‘share a household’ or ‘household responsibilities’ – such as the payment of utilities and housework.[7]

    [7] Ibid AAT File, department decision record see folio [25]

36. At the hearing, both parties acknowledged that the physical distance between them made it impossible for them to provide evidence as far as it concerned the nature of how each contributed and participated in a household environment. Nevertheless, the parties provided extensive telephone logs/records as evidence of their continuous interaction with each other during a considerable period of time. The Tribunal questioned both parties about the content of their discussions. The applicant told the Tribunal that on a number of occasions the sponsor would call asking her for ‘her advice’ about ‘children’s issues’ and the applicant would respond with some indication on what needed to be done. The applicant also told the Tribuanl that she had sent traditional gifts to the children on occasion The sponsor confirmed this and went on to tell the Tribunal that both he and the applicant met each other in 2017, when the applicant had taken her mother to [Country 1] for medical treatment. The two enjoyed each other’s company for the time they were together. The sponsor provided a number of photographs in evidence of this meeting.[8] Moreover, in 2018, the sponsor travelled to Ethiopia because his mother was ill and for a period 2-3 weeks stayed with the applicant at her home. Thereafter, the parties both told the Tribunal they remained in constant communication via their mobile phones – exchanging daily concerns about each other and their daily routines.

    [8] AAT File, see Folio [74][-109]

37. While the parties have seldom cohabited within the confines of a home on their own, as one would expect from a married couple, the distance between the two is considerable, but that being the case, it has not prevented either of them from making the time to be with the other when it was possible and both have involved themselves in each other’s family concerns – be it assistance with elderly parents or by the mere exchange of advice on day-to-day issues involving each other’s daily routines. As stated earlier, the sponsor and the applicant currently reside in separate countries therefore it is accepted that any recent information in relation to the current household matters will not be detailed or necessarily available to support in toto the relationship. Nevertheless, the sponsor did visit his wife in [Country 1] (and [Country 2]) in 2017 and in Ethiopia in 2018 for a period of two weeks which displayed a genuine and the continuing nature of the relationship he had with the applicant. However, the details are minimal and the Tribunal therefore has given less regard to this aspect of the relationship.

    Social aspects of the relationship

1. In assessing the social aspects of the relationship, the delegate considered social interactions, the way the applicant and the sponsor presented their relationship to others, and the level of recognition of the relationship by family and friends as a reasonable test of the genuineness of a relationship. The delegate did not accept the parties’ evidence provided with their application. The delegate determined that the two witness statements of support were ‘generic’ and ‘lacking details on the relationship’s development.’[9] The delegate also dismissed the parties’ wedding photos because they did not show the presence of wedding celebrant.[10] In evidence provided before the Tribunal both oral and written, the parties submitted that their relationship’s social aspects were consistent with that of their status as a married couple. They both told the Tribunal that their ‘close circle of friends’ were ‘all aware of their relationship.’[11] Indeed, there was an interaction with the couple’s mutual friends whenever they visited Ethiopia – making a point of meeting the applicant. The Tribunal noted the statements of the sponsor’s friends [Ms C] and [Mr D] attest to the couple’s relationship and genuineness.

   [9] AAT File, Folio [24]

   [10] Ibid see Folio [24]

   [11] Ibid AAT File, applicant’s written statement in response to the Tribunal’s questions.

2. Moreover, the parties provided significant photographic material recording their ‘wedding’ celebration with close family and friends which provides proof that their relationship is widely known, recognised and considered genuine.[12] The Tribunal noted the delegate’s concerns about the ‘absence of wedding celebrant’ in the photographic records of the couple’s wedding and it was explained to the Tribunal that this was the couple’s second marriage and they did not wish the notoriety or the grand celebrations. They were happy to celebrate their nuptials with family and their closest of friends and with minimal officialdom. The Tribunal accepts this explanation. Finally, as discussed previously in this decision, the couple met and socialised together in [Country 1] and [Country 2] in 2017 and again in 2018 in while the sponsor was in Ethiopia. On both occasions, the two openly displayed their relationship in public and did so because each considered the other part of the other’s life.

   [12] see AAT File, Folio [111]-[114]

3. The Tribunal finds that there is social recognition of the marriage and gives weight to this aspect of the application.

   Nature of a person’s commitment to each other

4. The couple have known each other since 2014 – having married in November 2014 – an overall period of five years. The parties met through a mutual friend and thereafter through a steady interaction with each other a close friendship developed which led to marriage.

5. The Tribunal was told that even though there is a distance between them, their commitment to each other has not lessened because of the lengthy visa process they have encountered and endured. The distance is compensated by the two constantly exchanging their feelings over the phone and having met each other in 2014, 2017 in [Country 1], [Country 2] and again, in 2018 in Addis Ababa, Ethiopia.

6. The Tribunal having considered the oral and written evidence of the parties and the additional statements of others, the Tribunal concludes there is despite the distance between the sponsor and the applicant – each living in different countries, a close communication between them as far as it concerns the issues of their relationship and families. Daily life concerns are exchanged between them and mutual concern and care is portrayed by what the Tribunal heard in evidence from the sponsor and what was written to the Tribunal by the applicant.

7. There is in the Tribunal’s opinion, an awareness of each other’s needs and both look forward to being together and living their lives as an independent family unit. The couple displayed support for each other in their daily lives (even at a distance) and have plans for a home for themselves once they are re-united in Australia.

8. The Tribunal finds there is evidence of a long-term commitment to a spousal relationship.

9. Having regard to the financial aspects, the nature of the household, the social aspects and the nature of the persons’ commitment to each other, the Tribunal considers these findings together when considered together as demonstrating that there is a mutual commitment to a shared life as husband and wife to the exclusion of all others, and that they are in a genuine spousal relationship and that therefore meet the requirements of s.5F for a spousal relationship.

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

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

12. 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

13. The Tribunal remits the applications for Partner (Provisional) (Class UF) visas for reconsideration, with the direction that the first named 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

    Peter Vlahos
    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).