1717900 (Migration)

[2019] AATA 6644

1717900 (Migration) [2019] AATA 6644 (19 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1717900

MEMBER:David Crawshay

DATE:19 July 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; and

·cl.309.221 of Schedule 2 to the Regulations.

Statement made on 19 July 2019 at 1:48pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – requisite level of commitment at time of visa application – high level of companionship and emotional support despite physical separation – joint ownership of assets – financial support – parties view relationship as long-term – lack of evidence – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5, 65
Migration Regulations 1994 (Cth), r 1.15A(3), 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 9 August 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 is Mr [A], a national of Ethiopia who is living in Nairobi, Kenya. Mr [A] is registered as a refugee in Kenya. He was born in [a certain year].

3. The review applicant is Mrs [B], a permanent resident of Australia. Mrs [B] was born in Ethiopia in [a certain year] and moved to Kenya before migrating to Australia under [a temporary] visa.

4. The visa applicant applied for the visa on 22 December 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).

5. The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl.309.211 because the visa applicant did not meet the definition of spouse under s.5F of the Act. Specifically, the delegate found that there was insufficient evidence to support the nature of the parties’ relationship, nature of their household, the social aspects of the relationship and the nature of the parties’ commitment to each other.

6. The review applicant appeared before the Tribunal on 26 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant.

7. The review applicant was represented in the review by her registered migration agent.

8. The Tribunal was assisted by an interpreter of the Amharic and English languages.

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

   BACKGROUND

10. The parties claim to have met in Nairobi while the review applicant was on her way to church in May 2013. The visa applicant purportedly asked the review applicant if she was “Habesha” (or Ethiopian) and she replied that she was. They exchanged telephone numbers.

11. The parties claim to have communicated by telephone, and soon after organised a coffee date where they exchanged more information about themselves, including that they were both refugees from Ethiopia who were living in Kenya.

12. At or around this time in 2013, the review applicant had commenced her application for an Australian [temporary] visa; the visa was granted in May 2014.

13. The parties were married in June 2014 and claimed to have immediately begun living together at a house [in] Nairobi.

14. In August 2014, the review applicant moved to Australia.

15. Later that year, in November 2014, the visa applicant applied for an Australian [temporary] visa. This visa was not granted.

16. The present visa application was lodged in December 2015.

17. In July 2018, the review applicant travelled to Kenya where the parties claim to have stayed together in a house in Nairobi and a [location] in Mombasa.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. The issue in the present case is whether the visa applicant is the spouse of the review applicant under s. 5F of the Act.

    Whether the parties are in a spouse or de facto relationship

19. 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 who is a permanent resident of Australia.

20. ‘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. For persons to be in a married relationship:

    ·they 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).

21. 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 of the relationship, 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) is effectively a question which must be answered: He v MIBP [2017] FCAFC 206.

    Are the parties validly married?

22. 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). The marriage took place on 14 June 2014 in Nairobi.

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

23. The Tribunal has considered any joint ownership of real estate or other assets, any joint liabilities, the extent of pooling of financial resources, any legal obligations owed to the other party, and any sharing of day-to-day household expenses in assessing the financial aspects of the relationship.

24. In relation to joint ownership of major assets, both parties gave evidence at hearing that the visa applicant purchased a [vehicle] in May 2017 for business purposes with [money] provided by the review applicant. A loan agreement between the visa applicant and a [Named Person], money transfer receipts, registration papers and a sale agreement in the visa applicant’s name were submitted, along with a statutory declaration from the review applicant in support. The Tribunal accepts that the parties have co-invested in this asset.

25. Another claimed co-investment was in a share of a [shop] selling [certain products] in a shopping centre. The parties claim that in June 2017, [money] was sent to the visa applicant by the review applicant for this purpose. Photographs of the visa applicant working at the shop, along with evidence of a money transfer for that amount, were submitted in support. The Tribunal accepts that the investment was probably made.

26. In addition, the review applicant claims to have supported the visa applicant materially in other respects. She has submitted evidence in the form of a print-out of money transfers made between February 2016 and December 2018, along with four receipts from 2014 and 2015. These transfers (excluding those used to pay for the [vehicle] and the share in the [shop]) total just over [an amount of money]. The review applicant also submitted evidence of [purchases] given to the visa applicant during her visit in 2018.

27. The parties gave evidence that they have not otherwise integrated their finances – they have no ongoing joint liabilities or joint bank accounts, and they do not owe legal obligations to the other person. However, the Tribunal notes in this regard that the parties live in separate countries and would not be expected to have a high level of financial integration.

28. In relation to household expenses, both parties said at hearing that while they shared expenses when both in Kenya and working in 2014, the review applicant covered all expenses during her visit in 2018.

29. In all, the Tribunal accepts that the review applicant has provided significant financial support to the visa applicant and that they have some joint ownership of major assets, and gives this aspect some weight in assessing the financial aspects of the relationship.

    Nature of the household

30. The Tribunal has considered any joint responsibility for the care and support of children, the parties’ living arrangements and any sharing of housework in assessing the nature of the household.

31. No evidence has been provided of any children of the parties or of any one of them.

32. As to the parties’ living arrangements, the Tribunal heard from the parties that they began living together at an address [in] Nairobi immediately after their wedding in June 2014. Before that time, the parties claim that they maintained separate addresses, with the visa applicant coming to visit her house and staying overnight and vice versa. The parties gave consistent evidence as to some of the finer details of their accommodation there and the Tribunal accepts that the parties most likely lived there as claimed during the two-month period from June 2014 till August 2014.

33. The parties have submitted numerous photographs and some short videos from when the review applicant visited Kenya in 2018. Among these photographs and videos are some of the parties in the visa applicant’s apartment in Nairobi and at a [location] in Mombasa during a holiday. Based on this evidence, the Tribunal accepts that the parties lived together during the review applicant’s visit in 2018.

34. It gives this aspect some weight in assessing the nature of the household at the time of application and at the time of this decision.

    Social aspects of the relationship

35. The Tribunal has considered whether the parties represent themselves to other people as being married to each other, the opinion of friends and acquaintances about the nature of the relationship, and any basis on which the parties plan and undertake joint social activities in assessing the social aspects of the relationship.

36. The parties submitted a DVD containing video recordings of their wedding ceremony and reception in June 2014. These events were modest, mainly attended by the parties’ friends and work colleagues in Nairobi. None of the parties’ families (who were all living outside of Kenya) was able to attend the event. The review applicant said at hearing that she and the visa applicant could hardly afford the wedding as they were refugees. It is noted that the wedding reception took place at the [location] where the visa applicant claimed to work as a [Occupation 1], and his boss was a witness to the marriage. These recordings supplement a handful of photographs from the wedding that had already been submitted to the Department.

37. Numerous other photographs were submitted to the Tribunal depicting the parties socialising with various other people described as friends of the visa applicant, as well as by themselves. In these photographs the parties appear to show no hesitation in presenting themselves as a married couple. Moreover, the review applicant was able to correctly identify these friends when presented with their photographs at hearing.

38. Turning to the question of whether the parties represent themselves to other people in Australia as a couple, the review applicant submitted several Form 888 statutory declarations from friends, her [sibling] and her general practitioner.

39. None of these declarants has met the visa applicant, so none can attest to seeing the parties together. The review applicant’s [sibling], Ms [C], declared that she had witnessed the review applicant communicating with the visa applicant when the two [siblings] were living together and had regularly communicated with him.

40. Ms [D], who describes herself as a friend of the review applicant’s since primary school in Ethiopia, and who works with her at [Named Employer], says that she has also witnessed the review applicant speaking with the visa applicant and has spoken to him when the review applicant hands the phone over to her.

41. Lastly, the review applicant’s GP, a Dr [E], declared that he had supported her during the visa application process from when she first saw him in August 2016.

42. The Tribunal is satisfied that there is some level of recognition of the relationship from among the parties’ social circles in Kenya and Australia at the time of application and at the time of decision, and has given this aspect some weight when assessing the social aspects of the relationship.

    Nature of parties' commitment to each other

43. The Tribunal has considered the duration of the parties’ relationship, the length of time they have lived together, the degree of companionship and emotional support they draw from each other and whether they see the relationship as long-term in assessing the nature of the parties’ commitment to each other.

44. The parties claim to have met in May 2013, or over six years ago, in Nairobi; however, very little evidence has been submitted to corroborate this first meeting or subsequent meetings. Only a handful of photographs were submitted to the delegate, and most of these were photographs of their wedding. The parties have since submitted further photographs from their time together in Kenya in 2013 and 2014 – again, most are of their wedding.

45. The review applicant gave evidence at hearing that she had revealed her relationship with the visa applicant to the Department during interviews for her own [temporary] visa. Records show that this interview took place on 20 March 2014, and within it she did refer to the visa applicant as her fiancé and said that she had known him for nine months. This timeframe is consistent with what she submitted in this application.

46. While there is little, if any, documentary evidence to corroborate the parties’ claims that they met in May 2013, the Tribunal accepts that the parties knew each other since around early-2014 at the latest and possibly around mid-2013. In either case, the Tribunal accepts that the parties’ relationship was reasonably well-developed around the time the review applicant emigrated to Australia in August 2014 and when the visa application was made in December 2015. The Tribunal gives this aspect moderate weight when assessing the nature of the parties’ commitment to each other.

47. The parties lived together from their marriage in June 2014 till the review applicant left to come to Australia in August 2014. The review applicant visited the visa applicant in Kenya in July 2018 for a period of three weeks. At all other times since August 2014, the parties have lived in separate countries.

48. The review applicant was questioned on why she had not visited the visa applicant earlier, or more often. The review applicant replied that she had been expecting a good outcome from the visa application process. She added that her lack of funds had also contributed – she was only working casual shifts from July 2015 until around July 2017, when she converted to permanent part-time. The Tribunal does not need to make a finding on the validity of the first reason because it accepts that there were financial and work obstacles that most likely accounted for this delay.

49. The Tribunal also notes evidence which shows the parties have communicated extensively during much of the period where they have been living separately, including telephone and messaging records. Indeed, these extensive communications cover a period where both have suffered tragedy – in October 2016, the review applicant lost her father; and in October 2018, the visa applicant’s mother died. The parties gave evidence at hearing that they provided each other emotional support through these tough times and the Tribunal accepts their evidence as given.

50. Photographs submitted by the parties show them as being relaxed with each other and in the presence of their friends. As stated above, the Tribunal considers that the parties are willing to present themselves to friends as being a couple.

51. Under questioning at hearing, the parties also displayed a high level of knowledge of each other’s lives.

52. The Tribunal therefore accepts that the parties offer each other a high level of companionship and emotional support despite their physical separation, and has given this aspect significant weight when assessing the nature of their commitment to each other.

53. In relation to the question of whether the parties see their relationship as long-term, the representative of the review applicant submitted that the parties’ two co-investments should count as evidence on this point, along with the review applicant’s continued financial support of the visa applicant. The Tribunal agrees with this submission and gives it some weight.

    Other matters

54. The Tribunal notes the overlap of events relating to the review applicant’s [temporary] visa application and the visa applicant’s partner visa application.

55. In an interview in March 2014 with the Department, the review applicant was told that the visa applicant could not be included on her [temporary] visa application as he was not yet her husband or de facto partner. Not long after, the parties claimed to have committed to a shared life as a married couple to the exclusion of all others. Shortly after being granted a [temporary] visa in May 2014, the review applicant married the visa applicant in June 2014 and the parties began living together.

56. This chain of events may suggest that both parties have sought to maximise the visa applicant’s chances of achieving a migration outcome, one way or another. However, if this be true, then the Tribunal does not believe it is a disingenuous attempt. The Tribunal has found that the parties were in a relationship by the time the review applicant was interviewed by the Department in March 2014 and where she referred to the visa applicant as her fiancé.

57. In any case, the Tribunal finds that the parties had the requisite level of commitment at the time the visa application was made in December 2015. By this time, the review applicant had already been remitting money to the visa applicant, and the parties were communicating with each other on a regular basis. They had lived with each other for the two months between their wedding and the date the review applicant moved to Australia.

58. If the parties were indeed motivated by a desire to achieve a migration outcome for the visa applicant, then it was not their sole motivation.

    CONCLUSION

59. 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. The parties have a mutual commitment to a shared life as a married couple to the exclusion of all others, their relationship is genuine and continuing, and they do not live separately and apart on a permanent basis.

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

61. 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

62. 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; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    David Crawshay
    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).