1827567 (Migration)

[2019] AATA 1050

1827567 (Migration) [2019] AATA 1050 (18 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1827567

MEMBER:John Billings

DATE:18 March 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 18 March 2019 at 4:35pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – Federal Circuit Court remittal – genuine spousal relationship – age difference – lack of social recognition of relationship ­– represented themselves as married couple to only a small and restricted group of people – visa applicant’s immigration history – strong motivation to remain in Australia – mutual commitment  – tattoo of visa applicant's name – regular visits – degree of companionship and emotional support – close association between review applicant and visa applicant's family in Australia – decision under review remitted

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

CASES
He v MIBP [2017] FCAFC 206
MIBP v Angkawijaya [2016] FCAFC 5
MILGEA v Dhillon [1990] FCA 144

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 3 June 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] applied for the visa on 7 July 2015 on the basis of his relationship with his sponsor, the [review applicant] who is a [age] year-old Australian citizen born in Australia. At the time [the visa applicant] applied, 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 the time of application criterion in cl.309.211.  The delegate was not satisfied that [the visa applicant] was the spouse of [the review applicant].  The delegate considered that there was insufficient evidence in support of the application and, having noted matters including [the visa applicant]’s immigration history, referred to below, the delegate expressed the view that it was “ highly likely” that there was not a genuine spousal relationship and that the parties had entered an arrangement to facilitate [the visa applicant]’s entry into Australia for his “economic betterment.”

4. [The review applicant] applied for review on 6 June 2016.  She provided a copy of the primary decision to the Tribunal.

5. On 8 June 2017, after a hearing held in Adelaide on 30 March 2017, the Tribunal (differently constituted) affirmed the decision to refuse the Partner visa: AAT reference 1608212.  On that occasion the Tribunal received oral evidence from [the review applicant], [two named persons] ([the visa applicant]’s aunt and uncle), and, by telephone, from [the visa applicant]. 

6. [The review applicant] applied for judicial review.  [In] August 2018 the Federal Circuit Court of Australia gave judgment remitting the matter to the [Tribunal].  The Court identified certain jurisdictional errors made by the Tribunal. 

7. The Tribunal has recently listened to a recording of the March 2017 hearing.

8. [The review applicant] appeared before the Tribunal on 13 March 2019 by video link from Adelaide to give evidence and present arguments. The Tribunal received further oral evidence from the witnesses who gave evidence at the March 2017 hearing.  There were additional witnesses: [Mr A] ([the visa applicant]’s brother), and [Mr B] ([the review applicant]’s younger son).  The Tribunal hearing was conducted with the assistance of an interpreter in the English and Albanian languages. 

9. [The review applicant] was represented in relation to the review by her registered migration agent. The representative attended the hearing.

10. [The visa applicant] is a [age] year-old national of Albania.  He lives there with his parents who own a [farm].  He is unemployed.  He is supported by his parents and by [the review applicant].  [The visa applicant] has one brother – [Mr A] - and a number of other relatives in Australia.  He has two other siblings who live in other countries. 

11. [The visa applicant]’s immigration history includes that in 2010 he made two applications for a Class TU Student visa.  Decisions were made that year to refuse the visas.  On 29 February 2012 [the visa applicant] arrived in Brisbane holding what was found to be a fraudulently altered [passport] that had been issued to another man.  [The visa applicant] was not immigration cleared.  He was taken into detention and later transferred to an immigration detention centre in Melbourne.  In March 2012 [the visa applicant] lodged an application for a Protection visa.  The visa was refused.  He applied to the RRT (Refugee Review Tribunal) for review.  In September 2012 the RRT (differently constituted) affirmed the decision to refuse the Protection visa: RRT reference 1207590.  (The decision indicates that the RRT made adverse findings about [the visa applicant]’s credibility).  In November 2012 [the visa applicant] was released into the community and went to Adelaide to live with [Mr A].  In March 2013 he was granted a Bridging E visa.  The Bridging E visa expired in September 2013.  In August 2014 [the visa applicant] was detained again.  He was deported in June 2015.  With assistance from [the review applicant] and [Mr A] [the visa applicant] has been repaying the Australian Government his removal costs. 

12. [The visa applicant] and [the review applicant] communicate in English. 

13. [The visa applicant] and [the review applicant] state their religion as Catholic. 

14. During the time [the visa applicant] was living in the community in Adelaide he was employed as [Occupation 1] by [Company 1]. 

15. [The visa applicant] and [the review applicant] are married.  They were married [in] December 2014 in [immigration detention], according to civil rites.  [The visa applicant] was then aged [age] years and [the review applicant] was aged [age].  The marriage was [the visa applicant]’s first marriage and [the review applicant]’s second marriage.  [The review applicant] was married from 1988 to April 2014.  She has two sons – [Mr C], aged [age], and [Mr B], aged [age] years.  [The review applicant] used to work casually as [Occupation 2] for one of her brothers and occasionally as a [Occupation 3].  More recently she has opened her own [business].  She states that her income is such that she is entitled to receive a Newstart allowance.

16. [The visa applicant] and [the review applicant] met at a night club in Adelaide [in] June 2014.  That was two months after [the review applicant]’s divorce.  They exchanged phone numbers.  The relationship commenced [in] July 2014 when they went to a motel.  After that they spent time together when [the review applicant] visited [the visa applicant] at [Mr A]’s home.  [The visa applicant] had the place to himself when [Mr A] went overseas on 11 July 2014.  It was in the following month – August – that [the visa applicant] was taken back into detention.  [The review applicant] visited him at the detention centre frequently – every day or virtually every day, it was claimed.  On 10 October 2014 [the visa applicant] and [the review applicant] made a commitment to each other.  The wedding was conducted two months later in the presence of [Mr A] and his wife and other relatives on [the visa applicant]’s side.

17. Especially because of remarks made by the Court in the judgment remitting the case to the Tribunal, it is important to mention that [the visa applicant] and [the review applicant] exchanged wedding rings.  And not long afterwards [the review applicant] had [the visa applicant]’s name tattooed on her [body]. 

18. By the time of the primary decision [the review applicant] had travelled twice to Albania to visit [the visa applicant].  By June 2017, when the Tribunal affirmed the decision to refuse the Partner visa, [the review applicant] had visited [the visa applicant] three more times.  [The review applicant] has now visited [the visa applicant] a total of eight times.  The first visit was in September 2015, within months of [the visa applicant] being deported.  On that occasion [the review applicant] was accompanied by [Mr A].  She went again in 2016, 2017, and 2018.  She returned to Australia from the latest visit in January this year.  According to the Department’s movement records, [the review applicant] has been offshore on these trips for periods ranging from 12 to 18 days.  [The visa applicant] and [the review applicant] have mainly stayed together at hotels but they have also stayed with [the visa applicant]’s parents in their village.  [The visa applicant] and [the review applicant] have also visited friends of [the visa applicant] in Albania. 

19. All or virtually all members of [the visa applicant]’s family know about the marriage.  But, with the exception of [Mr B] (whom [the review applicant] told about the marriage a day or so prior to the March 2019 hearing), and a [friend], (mentioned for the first time at the March 2019 hearing), [the review applicant] has not anyone about the marriage.  She told her sons about the relationship years ago.  Her sons, especially [Mr B], have been in contact with [the visa applicant] from time to time via [social media].  But she did not tell her sons she married [the visa applicant].  The reason [the review applicant] has given is essentially that her family (who she said have [a specified cultural] background and are “old school”) would be troubled to learn that she married person who was in immigration detention.  Rather, [the review applicant] wanted her family to meet [the visa applicant] when he was no longer in detention and to get to know him before she told them that they were married.   

20. [The review applicant] did know anyone in [the visa applicant]’s family before she met him but over the years she has formed a close friendship with his aunt and uncle in particular. 

21. The primary decision indicates that [the visa applicant] was interviewed in Tirana, Albania, by an officer of the Department [in] February 2016.  According to the primary decision the interview was conducted in English with the assistance of an Albanian interpreter. 

22. There are notes of the interview on the Department’s file.  The Department’s file also includes a copy of the relevant pages of [the visa applicant]’s Albanian passport; [the review applicant]’s divorce order; [the visa applicant] and [the review applicant]’s certificate of marriage; over a dozen Serco property receipt documents dated from August 2014 to January 2015 (submitted as evidence of [the review applicant]’s visits and her support for [the visa applicant] – providing clothing and rings to him); journal, media and other articles on the subject of relationships between men and older women; photographs; phone records; money transfer receipts, itineraries; an Albanian hotel receipt dated February 2016 naming [the visa applicant] and [the review applicant]; and statutory declarations and statements in support of the application.

23. Documents submitted to the Tribunal include further photographs, phone records, money transfer receipts and hotel receipts (dated in August 2016 and January 2017); a copy of [the review applicant]’s passport; and an itinerary for a proposed ninth visit in middle of this year.

24. The Tribunal’s decision record in case number 1608212 indicates that a DVD and thumb drive of videos of the parties signing marriage documents, and of trips in Albania, were in evidence at the March 2017 hearing. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

26. The issue in this case is whether at the time of application, and now at the time of decision, [the visa applicant] was and is the spouse of [the review applicant].  For the reasons that follow, the Tribunal is satisfied about that, though not without reservations. 

27. As will be seen, the Tribunal must be satisfied that there is a mutual commitment to a shared life as a married couple to the exclusion of all others.  The case in favour of a finding that [the review applicant] has that commitment to [the visa applicant] is stronger than the case in favour of a finding that he has that commitment to her.  Nevertheless, the Tribunal is satisfied about that.

28. At this point it is convenient to mention a few matters that were referred to in the June 2017 Tribunal decision and in the Court judgment. 

29. First, there were observations that in some photographs [the review applicant] was not wearing a wedding ring.  [The review applicant] told the Tribunal in March 2017 that she did not always wear her wedding ring and other rings.  She said that she regularly took them off at home or in hot weather.  Considering the whole of the evidence, the Tribunal does not consider that there is anything untoward in the fact that [the review applicant] does not wear her wedding ring at all times. 

30. Another matter – one that the Tribunal considers is a very significant indication of [the review applicant]’s commitment at least - is that she had [the visa applicant]’s name tattooed on her [body] after they were married.  She still has the tattoo.  At the March 2019 hearing the Tribunal inquired whether [the visa applicant] has reciprocated.  [The review applicant] and [the visa applicant] gave consistent evidence about that.  Their evidence was to the effect that he intends to get a tattoo of her name if and when he comes to Australia.  He prefers to have that done in Australia where he has been tattooed before. 

31. The third matter concerns the parties’ age difference and the significance of any discussions they may have had about the possibility of children.  The Tribunal has mentioned the material submitted to the Department on the subject of couples where the female partner is older than the male partner.  In an email to the Tribunal dated 11 May 2017 the representative referred to the President of France and his wife and noted the difference in their ages.  Such references are of limited value, for the focus must always be on the case at hand.  Still it can be noted that the phenomenon of relationships between men and substantially older women is not unheard of[1].  [The visa applicant] and [the review applicant] gave evidence to the effect that the age difference is not an issue for them.   [The visa applicant] said in essence that he had always thought that [the review applicant] looks much younger than she is.  Having seen the photos, the Tribunal records its view that the least that can be said is that [the review applicant] does appear to be much closer in age to [the visa applicant] than she actually is. 

    [1] The material submitted to the Department includes, at folio 103, US statistics showing the incidence of married couples where the wife is aged 20+ years or more older than the husband to be less than 1%.  According to the material, data for Australia is almost identical.  

32. Whatever the age of the parties, a capacity and desire to have children together is not – depending on their attitude - an indispensable component of a married relationship.  However, depending on their age, and depending in particular on whether the woman has gone through menopause, a decision-maker may reasonably inquire whether, in discussing their plans for the future, they have talked about having children.  It is not necessary now for the Tribunal to discuss in detail how the Tribunal approached the matter in 2017 or what comments the Court made about that but, given the attention the Court paid to the matter, the Tribunal considered that it was important to explore the point further. 

33. The evidence is problematic.  At his interview in 2016 [the visa applicant] said he wanted children.  Asked whether it was possible for him and [the review applicant] to have children, he said that he and [the review applicant] had not discussed the matter deeply.  In 2017 [the review applicant] told the Tribunal more or less that she and [the visa applicant] had discussed it.  She said that having children was not so important to them.  She thought that if they were meant to have children they would.  [The visa applicant] also said they had discussed the matter.  He said that everything would happen at the right time and they would make a decision about it.  At the recent hearing [the review applicant] told the Tribunal that [the visa applicant] knew that she could not have children but she also said that possibly she could have children.  She also told the Tribunal that she used contraception “just in case”.  When the Tribunal made inquiries of [the visa applicant] he said that “God knows these things”.  He expressed discomfort about the discussion.  He said his love for [the review applicant] is what is important.  At times he was evasive.  Asked if he knew that [the review applicant] was unable to have children he replied that he is not a doctor.  At one point he seemed to become exasperated and he made a sarcastic remark. 

34. [The visa applicant] and [the review applicant] appeared to contradict each other on the subject of contraception.  The relevance, obviously, is that if [the review applicant] used contraception and if [the visa applicant] was aware of that, then he ought to have realised at least that she thought there was the possibility of pregnancy.  The Tribunal acknowledges the sensitivity of the subject.  The Tribunal is also mindful that [the visa applicant] was giving evidence by telephone through an interpreter in what was very early in the morning in Albania.  It appeared to the Tribunal that he may genuinely not have understood what the questions about contraception were directed to.  It is also relevant to note that [the visa applicant] complained that he did not want to discuss such matters when family members could hear that (forgetting or not realising, perhaps, that [the review applicant], the representative and the interpreter were the only ones present for that part of the hearing, as the Tribunal had informed him before he gave evidence).  The representative submitted that the problem could have been that, for religious reasons, [the visa applicant] was reluctant to discuss the use of contraception.  Neither he nor [the review applicant] said that was the case, however.

35. The Tribunal is not satisfied that [the visa applicant] was entirely frank with the Tribunal on this subject.  Nevertheless, when this aspect of the case is reduced to its essential elements, the Tribunal accepts that for [the visa applicant] and [the review applicant] the capacity and desire to have children has not been an indispensable component of the relationship and that their discussions about it have been limited. 

36. More generally regarding credibility, the Tribunal has noted that [the visa applicant] engaged in fraud when he came to Australia in 2012.  The Tribunal has also noted that adverse credibility findings were made by the RRT in 2012.  The Tribunal has made its own assessment of credibility regarding the Partner visa application. 

1. There was not absolute consistency in the evidence given to the Tribunal but there was substantial consistency.  There was support given for [the visa applicant] and [the review applicant]’s claims by the documentary evidence.  Important aspects of the matter have been corroborated - to some extent - by the Department’s movement records: the trip that [the review applicant] made with [Mr A] in 2015 and the seven trips she has made since then; and [Mr A]’s departure from Australia in July 2014 at the time when, as claimed from the outset, [the review applicant] was spending time with [the visa applicant] at [Mr A]’s home.  The Tribunal refers below to the further evidence that supports the claims.

2. There was inconsistency in the evidence about when it was that [the review applicant] first met anyone in [the visa applicant]’s family, but given that this occurred nearly five years ago it does not seem to be particularly important.  [The review applicant] said it was after [the visa applicant] was taken into immigration detention.  [Mr A] and [the visa applicant] said that [the review applicant] first met [Mr A] (though not the other family members) when she went to visit [the visa applicant] at [Mr A]’s home not long before [Mr A] departed Australia in July 2017. 

3. The Tribunal will soon discuss in more detail the financial, social and other aspects of the relationship.  The Tribunal is especially concerned about the lack of social recognition of the relationship, especially on [the review applicant]’s side.  It may be one thing that she would not want to tell her sons and other family members or friends straight away that she was marrying a man they had never met who was in immigration detention.  It is another thing that even now [the review applicant] has told so few of them about her marriage.  She told [Mr B] about the marriage only when she became aware that the Tribunal was interested in receiving evidence from someone in her family.   The Tribunal accepts that [the review applicant] did at least tell her sons years ago that she was in a relationship with [the visa applicant] and that [Mr B] especially has been having fairly regular contact with [the visa applicant] via [social media].  (He said it was at least once a month).  The Tribunal explored, incidentally, how [the review applicant] was able to explain her overseas travel to her family.  She said in essence that – with the exception of her sons – especially [Mr B] who sometimes took her to or collected her from the airport – she merely told her family that she was taking time off.  ([Mr B]’s oral evidence was consistent with [the review applicant]’s on this point.  And in 2016 [Mr B] and [Mr C] made a written statement declaring their knowledge that she visited [the visa applicant] in Albania).     

4. There are other concerns.  One concern is [the visa applicant]’s immigration history and what it appears to indicate about his determination to be in Australia. 

5. A related concern arises from the fact that despite [the review applicant]’s financial position she has been able to travel overseas numerous times to see [the visa applicant].  Given the history, the possibility has to be considered that [the visa applicant]’s family has given her money or promised her something for sponsoring [the visa applicant].  [The review applicant] has denied that.  After hearing from her and the witnesses the Tribunal does not find that [the review applicant] has been given or promised anything for sponsoring [the visa applicant].  It did seem that there was conflict in the evidence about who paid for the first trip to Albania: [the review applicant]’s said that [Mr A] paid her fare whereas [Mr A] said that if he remembered correctly each of them paid their own fare.  Considering the whole of the evidence, the Tribunal does not consider the apparent conflict to be significant.  Relevantly, there is also this evidence to take into account.  Since the first trip [the review applicant] has managed by paying her airfares by instalment.  When she is in Albania [the visa applicant]’s parents look after her to some extent.  At the March 2017 [the review applicant] gave evidence that her mother and her son help her financially sometimes.  And, when the Tribunal inquired further at the March 2019 hearing, [the review applicant] mentioned funds from her divorce settlement that she has in a term deposit that she has been drawing on. 

6. In any event [the review applicant] and [the visa applicant]’s family in Australia have formed a close association.  It would be possible to draw either a favourable inference or an unfavourable inference from that.  It is to be expected that [the visa applicant]’s family would support his efforts to come back to Australia and so would be eager to support [the review applicant] in sponsoring him.  Having heard especially from [the visa applicant]’s aunt, the Tribunal considers that the close association genuinely reflects [the visa applicant]’s family’s support for [the review applicant] as the wife of their relative.  The Tribunal mentions, incidentally, that while [Mr B] told the Tribunal that he came to know a member of the [visa applicant’s] family [about] five years ago, there appears to be no basis for regarding that as anything other than a separate, incidental, circumstance. 

7. On the essential question of the parties’ commitment to each other, the Tribunal acknowledges that the relationship commenced a very short time before [the visa applicant] was taken into immigration detention in 2014.  (Both he and [the review applicant] gave evidence that it was not until that time that he told her about his immigration problems).  The Tribunal accepts that, despite that, [the review applicant] demonstrated a very strong commitment to [the visa applicant] by regularly visiting him in detention and providing emotional and material support to him.  The Tribunal heard that [the visa applicant]’s mental health deteriorated in detention to the point where he was prescribed medication and became very much in need of the emotional support that [the review applicant] gave him. 

8. The Tribunal mentions in parenthesis that when he was interviewed in February 2016 [the visa applicant] said that he was seeing a psychiatrist.  In the response to the recent hearing invitation it was asserted that [the visa applicant] has some memory loss due to his detention and “mental health issues” but there is no current evidence to support that.  There was no submission that [the visa applicant] was not competent to give evidence.  With the exceptions that have been noted, [the visa applicant], responded directly and with reasonable clarity to the Tribunal’s questions.  The Tribunal considers that he was competent. 

9. The Tribunal will have more to say about [the visa applicant]’s motivation towards the end of these reasons.  The Tribunal notes now that [the visa applicant] and [the review applicant] told the Tribunal that they married when and where they did because they wanted to and were able to.  At the time they hoped that [the visa applicant] would be released from detention. 

10. Before leaving the subject of [the visa applicant]’s credibility, the Tribunal notes that the delegate remarked that during the interview that took place in Albania in February 2016 [the visa applicant] displayed limited knowledge about [the review applicant]’s personal circumstances.  It is so that, for instance, [the visa applicant]’s knowledge of her previous marriage was limited (which for some couples would be understandable).  On the other hand, the notes of the interview also show that he displayed reasonable knowledge about matters including [the review applicant]’s sons and their relationships, and her parents and siblings. There is another point about the interview notes that should be mentioned.  In the primary decision the delegate, discussing [the review applicant]’s first trip to Albania, made adverse credibility findings.  The delegate recorded that [the visa applicant] said during the interview that [the review applicant] visited Albania for two weeks in 2015 and that he and she stayed at a hotel in one place for the first seven days and then a hotel in another place for the remainder of [the review applicant]’s time in the country whereas [the visa applicant]’s parents’ statement indicated that she stayed in their house for two weeks.  The delegate remarked that the inconsistency cast considerable doubt on the parties’ veracity.  The Tribunal does not agree.  According to the interview notes, what [the visa applicant] said was this: “[We stayed a]t the hotel [in the first place] for one week and then another hotel [in a second place] … We also visited my family …”  The notes do not indicate that [the visa applicant] said that they stayed in the second hotel for the remainder of [the review applicant]’s time in Albania.  In their statement [the visa applicant]’s parents said this: “[[the review applicant]] came to Albania … and stayed for two weeks.  During her stay in Albania she stayed in our house …”  While [the visa applicant]’s parents did not mention any hotel, they did not say that [the review applicant] stayed in their house for two weeks.  They just said that she was in Albania for two weeks. 

11. The Tribunal is satisfied from [the review applicant]’s oral evidence, but also from her actions over the past four years - including regularly visiting [the visa applicant] in detention, providing emotional and material support to him, having his name tattooed on her [body], and travelling eight times to Albania to be with him - that she is genuinely committed to him.  The Tribunal is also satisfied from the evidence, including [the visa applicant]’s oral evidence, that he is genuinely committed to her.  [The visa applicant] told the Tribunal about what [the review applicant]’s care and support has meant to him, saying that he has never met a better person in his life.  At the March 2017 hearing [the visa applicant] commented that [the review applicant] supported him even though he had nothing.  He said that it was easy for someone to show love in good times but not in bad times as [the review applicant] had.  He said that she was “more than a wife” to him because of everything she had done for him.  He said that he loved her for what she did for him. 

    Whether the parties are in a spouse or de facto relationship

12. 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.

13. ‘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.

    Are the parties validly married?

14. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. On the basis of the evidence before it, including [the review applicant]’s divorce order and her and [the visa applicant]’s marriage certificate, the Tribunal is satisfied that 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?

    Financial aspects of the relationship

15. Giving oral evidence in March 2019, [the review applicant] confirmed that she and [the visa applicant] have not ever jointly owned any real estate or other major assets.  They have not had any joint liabilities.  Neither of them has owed any legal obligation in respect of the other.  They have not pooled financial resources or shared day-to-day household expenses.  In the circumstances of the relationship none of this is so surprising.  On the other hand, there is evidence that [the review applicant] provided material support to [the visa applicant] when he was in detention in Adelaide and that, from time to time since he was deported, [the review applicant] has transferred money to him.  The money transfer receipts in evidence bear dates in 2015, 2016 and 2017 and are generally for hundreds of dollars (Australian). 

16. Further regarding the financial aspects of the relationship, the Tribunal heard that [the visa applicant] hopes to return to employment in Australia, so that he and [the review applicant] will have two incomes, and that they plan to buy a house together. 

17. The Tribunal places limited weight on this consideration.  

    Nature of the household

18. In the circumstances of the relationship there is limited evidence about the nature of the household such as the parties’ living arrangements and any sharing of housework. 

19. It was only a short time after [the review applicant] and [the visa applicant] met that he was taken into immigration detention in Adelaide.  Up to that point they stayed together a number of times but they were not living together.  The Tribunal accepts the evidence that since they were married they have stayed together in Albania in hotels and with [the visa applicant]’s parents. 

20. [The visa applicant] and [the review applicant] do not have joint responsibility for the care and support of children.  The Tribunal has discussed above the evidence concerning their capacity and desire to have children and the discussions they have had about that. 

21. The Tribunal places limited weight on this consideration.  

    Social aspects of the relationship

22. The Tribunal has already substantially addressed the social aspects of the relationship. 

23. In addition to what has already been noted there is oral evidence that [the review applicant] has had contact via Skype with [the visa applicant]’s siblings who live in other [countries].  The Tribunal also mentions that in March 2017 [the review applicant] told the Tribunal about time she and [the visa applicant] spent in Albania with his school friend and his wife.  In September 2018 [the review applicant] provided further photographs to the Tribunal.  Those photos include a photo that [the review applicant] confirmed at the recent hearing shows her and [the visa applicant] with that couple at dinner in Albania in 2018. 

24. The vast majority of the other photographs that have been submitted simply show [the visa applicant] and [the review applicant] at various locations, but there are also photos of [the visa applicant] and [the review applicant] with [the visa applicant]’s parents.  The Tribunal has also mentioned that the decision record in case number 1608212 indicates that a DVD and thumb drive of videos of the parties signing marriage documents, and of trips in Albania, were in evidence at the March 2017 hearing. 

25. There are statutory declarations and statements in evidence, made by persons including [the visa applicant]’s parents regarding their knowledge of the marriage, and a statement by [the review applicant]’s sons regarding their knowledge of the relationship. 

26. The Tribunal has referred to the evidence about [the review applicant]’s wedding ring and the tattoo of [the visa applicant]’s name.  While the tattoo in particular supports claims about [the review applicant]’s commitment, it provides only limited support for claims about the social recognition of the relationship.  That is because [the review applicant] has told her family and friends so little about the person whose name it is. 

27. At the March 2017 hearing [the review applicant] confirmed that she had not informed Centrelink that she is married to [the visa applicant].  At the March 2019 hearing [the review applicant] said that she still has not informed Centrelink about that.  She said in effect that she did not see the point because he is not with her in Australia.

28. The Tribunal is satisfied that the parties have represented themselves to other people as being married to each other – though that is to only a small and restricted group of people.  There is no evidence from friends and acquaintances about the nature of the relationship but there is evidence from members of [the visa applicant]’s family and now from one of [the review applicant]’s sons about the precise nature of the relationship.

29. In the circumstances, [the visa applicant] and [the review applicant] have planned and undertaken joint social activities on a limited basis only. 

30. The Tribunal places moderate weight on this consideration.  

    Nature of persons’ commitment to each other

31. The Tribunal has already substantially addressed the nature of [the visa applicant] and [the review applicant]’s commitment to each other. 

32. The Tribunal is satisfied that the relationship has been in existence for over four and a half years and that [the visa applicant] and [the review applicant] have been married for over four of those years.  For the reason that [the visa applicant] was taken into immigration detention in Adelaide within a couple of months after he and [the review applicant] met and was deported the following year, he and [the review applicant] have not lived together in the sense of establishing a joint household, but the Tribunal is satisfied that they stayed together before [the visa applicant] was taken into detention and that they have stayed together on the occasions that [the review applicant] has visited him in Albania.  Further to that, there is evidence of frequent contact between them by telephone while they have been in different countries.  ([the review applicant] told the Tribunal in March 2017 that she saw [the visa applicant]’s frequent contact with her as a sign of his love for her). 

33. Putting to one side the evidence about children, [the review applicant] and [the visa applicant] gave reasonably consistent evidence about their future plans.  That includes the evidence, fairly general though it was, that they intend to have a celebration of their marriage in Australia, attended by both families.  

34. [The visa applicant] and [the review applicant] were not every expansive on the subject of each other’s personality and interests.  Still, on the basis of the oral evidence and the general evidence discussed earlier, the Tribunal is satisfied that they draw a significant degree of companionship and emotional support from each other and that they see the relationship as a long-term one.  It is relevant to note in this context that [the review applicant] has given evidence about the unhappiness she experienced in her first marriage.  In contrast, she described how [the visa applicant] has always shown care and respect for her.

35. The Tribunal places substantial weight on this consideration. 

36. Towards the end of the judgment in this case the Court referred to authorities that it said assisted [the review applicant].  One very important case is MIBP v Angkawijaya [2016] FCAFC 5. The motivation of the visa applicant was a central issue in that case. The parts of the judgments in Angkawijaya that the Federal Circuit Court quoted mainly concern the need for decision-makers to consider carefully and sensitively the evidence of the human relationship that is presented, and to consider all the circumstances of the claimed [relationship].  The Tribunal notes that in Angkawijaya Kenny and Griffiths JJ referred  to MILGEA v Dhillon [1990] FCA 144 and stated that as long as the relevant time is kept in mind there is no reason why the decision-maker should not take into account, together with all other relevant circumstances of the relationship, the motivation of one or both of the parties for entering the relationship, but those motivations may change and “the critical issue” is whether or not the decision-maker is satisfied that the parties were in a genuine relationship at the relevant time. Of particular relevance for [the visa applicant] and [the review applicant]’s case is that their Honours said that it was correct for the decision-maker in Angkawijaya to observe that a motivation to remain in Australia was not “mutually exclusive” to there being a genuine relationship: Angkawijaya at [62].

1. [The visa applicant]’s immigration history demonstrates his strong motivation to come to and remain in Australia.  His claims for protection were rejected.  A close reading of the February 2016 interview notes nevertheless suggests that he has maintained as true the matters that he claimed to be the basis for seeking protection.  Whatever the strength of his claims for protection, [the visa applicant] has incentives to be in Australia that arise independently of his relationship with [the review applicant]: he has a brother and other family members here; and he had steady employment here whereas in Albania he is unemployed.  On the other hand, it is significant to observe that [the review applicant] has been aware of these things for years.  ([the review applicant] was reluctant to discuss it, but the Tribunal elicited at the recent hearing that her knowledge of [the visa applicant]’s history extends to the basis on which he sought protection in Australia). 

2. The Tribunal has indicated that it has reservations about the case.  The age difference between the parties is not the most significant reason for the Tribunal having reservations.  The Tribunal’s reservations arise mainly from [the visa applicant]’s immigration history and from there being an almost complete lack of recognition of the relationship on [the review applicant]’s side.  Nevertheless, having regard to all the evidence and all the circumstances of the claimed relationship, the Tribunal is satisfied that [the visa applicant] and [the review applicant] have and at all material times have had a mutual commitment to a shared life as a married couple to the exclusion of all others and that the relationship between them is and at all material times has been genuine and continuing.  Further, the Tribunal is satisfied that the parties have lived together – at least in the sense described above - and that they have not lived and they do not live separately and apart on a permanent basis.     

3. 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.

4. Therefore [the visa applicant] meets cl.309.211 and cl.309.221.

5. 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

6. 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

   John Billings
   Senior 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).