1708378 (Migration)

[2018] AATA 2441

1708378 (Migration) [2018] AATA 2441 (16 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708378

MEMBER:Fiona Meagher

DATE:16 May 2018

PLACE OF DECISION:  Brisbane

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 16 May 2018 at 7:43pm

CATCHWORDS

Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Whether a genuine spousal relationship exists – Evidence of joint household limited by parties being resident in separate countries – Financial support provided to the visa applicant – Continuous and ongoing commitment – Decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 5F, 65
Migration Regulations 1994 (Cth), r 1.15A(3), 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 7 April 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 June 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 parties have a mutual commitment to a shared life to the exclusion of all others or that the relationship is genuine and continuing. A copy of the delegate’s decision was provided with the application for review.

4. The review applicant appeared before the Tribunal on 9 and 16 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] and [the visa applicant] (by telephone from Liberia). At The Tribunal hearings were conducted with the assistance of interpreters in the English, Liberian English and Mandingo languages.  

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

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 applicant is at the time of application and time of decision the spouse of the sponsor within the meaning of s.5F of the Act.

   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 by Grant dated [in] 2013.

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 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.

   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. On the evidence, a Liberian marriage certificate, 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?

    Background

11. The applicant was born in [a particular city in] Liberia on [a particular date]. He declared no previous relationships on his Visa application, however has six biological children, five of whom were declared on his Visa application. In addition, a stepchild was declared on the applicant’s Visa application, and after making his application for the Visa, in interview with the department, the applicant declared a further child.

12. The sponsor was born in Liberia on [a particular date]. She has had one previous relationship which ceased in August 2009. There are no children of that relationship.

13. The sponsor came to Australia as a dependent on her spouse on a Subclass 202 Refugee and Humanitarian visa.

14. The delegate expressed a number of concerns in relation to the application. Those concerns included in particular that the applicant has a sixth biological child, who had not been declared in his Visa application, and in respect of whom the sponsor had no knowledge until after their marriage. The delegate was also concerned about some inconsistencies in the applicant’s evidence, and had overall concerns regarding me amount content of documentary evidence in support of the application.

    Inception and development of the relationship

15. The parties gave consistent evidence that they originally met in [Country 1] in 2006. The applicant was immediately attracted to the sponsor, and approached her, but she told him that she was already in a relationship. The parties met again coincidently in the supermarket in [Country 1] in 2007, and the applicant approached the sponsor again, but she reiterated that she was still in a relationship.

16. The applicant came to Australia in 2008 in the circumstances outlined above. She became ill with [a medical condition] in 2009, and her previous relationship broke down at about that time.

17. In 2011 a mutual friend of the parties called the sponsor from Liberia, and told her that she had run into the applicant. The mutual friend told the sponsor that she had told the applicant the sponsor was no longer relationship, and the applicant asked for the sponsor’s number. The sponsor indicated to the mutual friend that she was happy for the applicant to contact her, and the parties subsequently started talking to one another.

18. They kept in touch consistently between 2011 and 2014, and after her friend [Ms A] had visited the applicant and was satisfied as to his suitability as a husband, the sponsor decided to go to Liberia and marry the applicant.

19. The parties gave consistent evidence that they married in March 2015, at a traditional wedding attended by more than 100 people. They then spent some time together going to the beach and eating out. Both sets of parents approved of the marriage, and both families attended the traditional marriage. The applicant paid a dowry of money (as opposed to the more traditional cows) to the sponsor’s family.

    Financial aspects of the relationship

20. The sponsor gave evidence that she has her own [business], and regularly sends money to the sponsor in sums of between 50 and $200, at least monthly and sometimes more often, depending upon how much she earns. The applicant confirmed that evidence. Both parties gave evidence that the sponsor pays the rent on a house rented in Liberia for the applicant his parents and children.

21. The Tribunal had a large amount of documentary evidence with respect to regular transfers of money from the sponsor to the applicant, that is substantially more evidence than that which was before the delegate, and which spanned periods from 2014 to 2018.

22. At this stage there is no evidence of joint ownership of any assets or liabilities, nor legal obligations owed by one party to the other. However the Tribunal accepts that the sponsor sends money to the applicant to assist in supporting him and his family, and places some weight on that evidence.

    Nature of the household

23. The parties gave consistent evidence they had lived together for a number of weeks at the time of their marriage in 2015. During that time the sponsor cooked, wash the floor and wash the clothes and the applicant cut the grass and occasionally helped in the kitchen.

24. As the applicant and sponsor live in different countries they have not established a formal household together. However, the applicant has six children, and the sponsor is looking forward to the parties being able to bring the children to Australia, as she is unable to have children, and would very much enjoy caring for the applicant’s children.

25. Given the parties reside in different countries, the Tribunal places limited weight on the evidence in relation to the nature of the household.

    Social aspects of the relationship

26. Before the Tribunal a number of statutory declarations additional to those which were before the Department. Some of them were from friends who attended their wedding in Liberia in 2015, and some are from people who know the applicant in Australia.

27. In addition, there are a number of photographs of the parties together, particularly on their wedding day. Those pictures include a number of the friends of the applicant and sponsor, together with, in particular, the sponsor’s family.

28. As well, the Tribunal heard evidence from [Ms A], a highly respected woman in the Liberian community looked up to by the sponsor. She gave evidence (consistent with that given by the applicant and sponsor) that she had visited the applicant in Liberia a year or so before the parties married, with a view to reassuring herself as to the suitability of the applicant as a husband for the sponsor. [Ms A] stated that she thought the applicant was a good man, who made the sponsor happy, and would be a good husband for her.

29. The Tribunal notes that there was more evidence before it than was before the Department with respect to the social aspects of the relationship, and places some weight upon it.

    Nature of persons’ commitment to each other

30. Both the applicant and sponsor gave consistent evidence about their affection and regard for one another. The Tribunal discussed at some length with the sponsor the fact that the applicant had a sixth child, after commencing his relationship with her (although before marriage), whom he had not disclosed until after they married. The sponsor’s explanation was that at the time when their relationship commenced the applicant’s sixth child did not live with him, and was with his mother. Since then, the applicant has become that child’s primary caregiver. The sponsor told the Tribunal that she was not concerned about the applicant’s ability to be faithful to her in the future – she said the child is a mistake, that everyone is entitled to make a mistake, and that he will never do anything like that again. The applicant’s evidence in this regard was similar.

31. The applicant told the Tribunal that he would not make “another mistake” – his goal is to come to Australia, save up money, send for his children and raise them together with the sponsor and have a happy family life.

32. The Tribunal had concerns, as did the Department regarding the amount of time the parties have spent together. Although they claim to have initially met many years prior to marrying, they have only spent about six weeks together since the inception of the relationship. The sponsor explained that she could simply not afford to go back to Liberia to visit her husband. She stated that she was a self-employed [business] operator, and her clients relied upon her. Furthermore, she stated that if she went away she may lose some of her clients who will make alternative [arrangements]. Finally, the sponsor stated that she could not afford the airfares, and loss of salary. She said that a return airfare to Liberia costs about $4500.

33. The sponsor also gave evidence that she had suffered [a medical condition], and was unable to have children. She said that the applicant was extremely supportive of her in relation to her health, was aware of her inability to have children, and welcomed her willingness to help care for his children. The applicant said that his children were the sponsor’s children. The sponsor is adamant that the applicant is a kind man who will take care of her and treat her well.

34. The Tribunal was provided with copious evidence of telephone contact between the parties. They gave consistent evidence that as the relationship was developing they spoke several times a week, but now speak at least daily and sometimes more often.

35. The parties also spoke of their hopes and dreams for the future, in terms of buying a house, and bringing the applicant’s children to Australia where they will receive a good education.

36. The Tribunal is satisfied that the parties draw a degree of companionship and emotional support from one another and see the relationship as long term. The Tribunal places some weight upon the nature of the persons’ commitment to each other.

37. The Tribunal considered the minor inconsistencies in the sponsor’s evidence given at the departmental interview and alluded to in the delegate’s decision. The Tribunal encountered no such inconsistencies in the evidence it heard, and in any case accepts that such inconsistencies may be attributable to the effluxion of time. The Tribunal considered the applicant’s and sponsor’s evidence to be consistent with one another, and internally consistent.

38. After consideration of all of the evidence the Tribunal accepts that the applicant and sponsor have a mutual commitment to a shared life to the exclusion of all others and that the relationship as a genuine and continuing one. The Tribunal accepts the parties do not live together separately and apart on a permanent basis.

39. 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 at the time of this decision.

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

41. 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

42. 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]

    Fiona Meagher
    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).