1834567 (Migration)

[2021] AATA 3013

1834567 (Migration) [2021] AATA 3013 (17 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1834567

MEMBER:Rosa Gagliardi

DATE:17 June 2021

PLACE OF DECISION:  Australian Capital Territory

DECISION: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.

Statement made on 17 June 2021 at 3:02pm

CATCHWORDS
MIGRATION – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – genuine spousal relationship – financial aspects – nature of household – social aspects – nature of commitment – sponsor previously identified as homosexual – 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

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 November 2018 to refuse to grant the visa applicants Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The first named visa applicant (the visa applicant) applied for the visa on 21 January 2017 on the basis of their relationship with their 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 he/she was not satisfied that the primary applicant (the first-named visa applicant) and her sponsor were in a genuine and continuing spousal relationship.

4. The review applicant appeared in person before the Tribunal on 22 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from the visa applicant in Ghana.

5. The review applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   SPOUSE/DE FACTO (cl.309.211(2), cl.309.221)

   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.

   Are the parties validly married?

9. If the parties are validly married, they may meet the requirements of a married relationship, but not a de facto relationship. 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).

   Background

10. The sponsor came to Australia on a Protection visa on the basis of his homosexual relationship with his partner.  He and his partner went to live with a Pastor and his wife in Sydney: [Pastor A] and [Ms B].  The sponsor and his partner did not declare the nature of their relationship to their hosts, however, as they were afraid of being adversely judged.  The sponsor and his partner also had nowhere to live at the time and they had to keep their relationship secret to avoid being on the streets. 

11. Over time the applicant and his partner told the Pastor about his relationship with his partner.  In a statutory declaration dated 4 April 2021, the Pastor and his wife stated, among other things:

    When we found out about their relationship, we were very upset, disappointed and we decided to throw them out of the home quietly but something inside of me edged me to plead with my husband to support them with prayers and counselling.  I strongly believe that God brought them to us for a purpose and that God probably wanted to deliver them through us.

    My husband and I started praying earnestly for them and from time-to-time shared scriptures with them and also encouraged them to read the Bible themselves. We noticed that (the sponsor’s partner), being a Muslim was very uncomfortable with the Christian faith.

    My husband and I consistently prayed that God would reveal Himself to [the sponsor] them (sic) and to save them…

    As a practice of our church, we encourage our members to voluntarily participate in prayers and fasting from time to time.  I remember that in the first week of August 2008, something remarkable happened during our prayer and fasting session, which to us was the demonstration of God’s deliverance power.  [The sponsor] came knocking on our door one dawn and requested to speak to us about a terrible dream he had.  He explained that he had a dream about homosexuals and judgement.  According to him it was like judgement day and he saw that the homosexuals were cast into a lake of fire where they went through severe agony and torment.  He looked terrified when he was narrating the dream.

    After narrating his vision, my husband and I prayed for him and we encourage him not to be terrified because we knew that God was delivering him from the bondage of homosexuality.  We continuously supported him with counselling.  [The sponsor] voluntarily shared this testimony in the church.  [The sponsor] has since fully given his life to Jesus Christ.  To date, he continuously tells us that he has not had the edge (sic) for homosexuality since we prayed for after the dream encounter and that he is fully delivered from the powers of homosexuality.

12. The Tribunal considered it is worth setting out this testimony because it is consistent with the version of events set out by the sponsor himself.  At hearing the Tribunal stated that it had trouble accepting that the applicant would disavow his homosexuality on the basis of a dream as his homosexuality was an inherent part of him. The Tribunal queried how he was able to come to see himself as heterosexual, particularly, after having based his protection claims on the basis of his homosexuality.

13. The sponsor was clear at hearing that he was not bisexual now and that it was divine intervention that led to his “conversion”.  He stated that prayers and counselling helped him turn away from what he perceived through his religious prism to be an improper way of life.  The Tribunal had questions in its mind about whether the sponsor may have fabricated his claimed homosexuality for the sole purpose of gaining a Protection visa in Australia.  Having had regard to the third-party evidence, however, the Tribunal is persuaded that this was not the case as the applicant was seen as a practising homosexual in Ghana and Australia by others.

14. The applicant has stated, and his Pastor has confirmed, that the relationship with his former partner broke down and the sponsor never saw him again.

15. The Tribunal accepts that sexuality can be fluid and may change over time.  It is not relevant for the Tribunal to query whether someone can suddenly stop seeing themselves as being gay.  The only pertinent question for the Tribunal is whether the sponsor and his current partner, the applicant, meet the requirements for a spouse relationship as defined.

16. After the sponsor had the transformative dream, he travelled back to Kumasi, Ghana in 2014.  He had gone to visit his mother who was unwell.  He also went to another area of Ghana, Accra, where he had a friend and he attended a church service there on 26 October 2014.  The sponsor at hearing stated that he was very down at that point because he had become estranged from his extended family who saw him as homosexual and had alienated him. 

17. It is claimed that the visa applicant was an usher at the church.  The applicant had seen the sponsor looking depressed and she reached out to him.  From there their relationship developed. 

18. The Tribunal notes that the issue of the primary visa applicant and children and the sponsor having undertaken DNA tests which confirm their claims about the sponsor and applicant not being related, and the children being the biological children of the applicant, is not central to the Tribunal’s inquiry.  Nonetheless, it does go to the parties’ credibility and provides confidence to the Tribunal that the parties can be taken at their word about fundamental issues.

    Are the other requirements for a spouse relationship met?

    Financial aspects of the relationship

19. The applicant has a small [business] in Ghana to assist her and her two sons survive.  However, since the parties’ relationship became official the applicant and her children have been largely dependent on the sponsor.  The sponsor has been working in Australia and consistent evidence was provided at hearing that the sponsor also made significant purchases for the applicant’s two sons by way of laptops, mobile phones and other educational items, such as textbooks.

20. The Tribunal also notes that the parties set up a joint bank account in 2016.

21. Convincingly, the parties have submitted evidence of the sponsor’s remittances to the applicants over a lengthy period of time.  The Tribunal also accepts that as claimed, sometimes the sponsor gives money and gifts to friends travelling to Ghana to give to the applicants.

22. Given the length of time that the sponsor has made significant financial commitments to the applicant and her children in Ghana, and given the quantity of the evidence submitted, the Tribunal accepts that the parties pool their financial resources as appropriate.  The Tribunal is also satisfied that when they have shared a household in Ghana, they have shared their household expenses proportionate to their earnings and capacity. 

23. The Tribunal also notes that the sponsor made a significant financial contribution towards having the family unit undergo extensive DNA testing and that he has travelled regularly to visit the applicants since the marriage on 25 December 2015.

    Nature of the household

24. The Tribunal notes that the sponsor has travelled to Accra, Ghana on three separate occasions, including for their marriage on 2015, 2016, and 2019.  It is only the COVID-19 pandemic which has prevented the sponsor from travelling to Ghana again more recently – a fact the Tribunal accepts.

25. Evidence has been submitted of the parties leasing a two-bedroom residence from [Rev C] on the sponsor’s most recent visit.  In addition, the Tribunal place’s significant weight on the fact the parties have purchased land together in Ghana (evidence submitted) which is part of a joint project to build a house to which the parties might one day return in their old age.  They had also discussed renting the property for income in the meantime. 

26. Hotel receipts in both names have also been submitted.

27. The Tribunal also notes that the sponsor had been living in a one-bedroom unit in Australia, but in the expectation that the applicant and her two children would be joining him, he moved to a larger residence which entails a significant financial cost to him relative to his salary.  The Tribunal considers that the sponsor’s preparation for the applicants to live with him as a family unit also goes to the parties’ genuine and continuing spousal relationship.  It is difficult to envisage that the sponsor would, over a period of time, pay for a residence he does not need for himself, if the relationship were not genuine and continuing.

28. The Tribunal has also sighted photographic material depicting the parties in household situations together and in the company of others.

    Social aspects of the relationship

29. The photographic material, including third party statements, demonstrates that the marriage was held within the context of the parties’ religious and family communities in Ghana.  At the time of application, [Rev D] and [Rev C] provided statutory declarations attesting to the relationship being genuine and continuing, however, they did not outline the development of the relationship.  At hearing the Tribunal also observed that given the sponsor’s past it would have expected third parties to provide a narrative of the relationship and whether they were convinced by such a narrative.

30. The parties have now submitted a joint statutory declaration by [Pastor A] and [Ms B] (referred to above), and the Tribunal has no reason to doubt their account of the development of the relationship.  Further, the marriage seems to have been discussed within the Church because as [Ms B] writes, “My Husband and I were contacted by a pastor from Ghana firstly, to advise that one of their church member had approached him that he (she) was getting married to [the sponsor], secondly to inquire about [the sponsor]’s circumstances in Australia lastly, to request our assistance to run a marriage counselling program for [the sponsor] because of the distance and cost”. 

31. [Rev D] has provided a further and updated statutory declaration, dated

    
    

    7 April 2021, indicating that as part of his religious duties he counsels couples and inquires into their respective backgrounds to assess the parties’ suitability for marriage.  [Rev D] declares that during the initial counselling, the applicant had told him that her husband had a previous relationship with a man while domiciling in Ghana but that due to the support of [Pastor A] and his wife, and divine intervention, the sponsor “repented” and that he had changed his sexual orientation.  [Rev D] declares that he had also spoken to the sponsor who confirmed he had been homosexual but “God had reformed him and he shall never adopt such sinful activities in his life until he dies, and that he utmostly loves [the visa applicant] and pledged to marry her to end of his life”.  [Rev D] also states that the parties enjoyed a honeymoon at [a] popular holiday resort.

32. [Rev D] also outlines that when the sponsor arrived in Ghana in December 2016 the parties celebrated their first wedding anniversary in the Church with refreshments (photos of the celebration have been submitted).  He also states that in 2019 the sponsor went with the applicant to visit his mother in Kumasi and attended the funeral of a Church member.  According to [Rev D], the parties also used the opportunity to go on scenic tours around the vicinity of Kumasi. 

33. In addition, [Mr E], submitted a statutory declaration from Ghana, dated

    
    

    5 April 2021, the brother of the applicant’s father, who as the customary successor of the deceased represented the family at the marriage ceremony held on 25 December 2015. 

    
    

    [Mr E] declared that “customarily, dowry and the required drinks were paid by the husband’s relatives before customary rites were performed” and that the parties lived as a couple from that day forward.

34. The Tribunal has also sighted invitations for the applicant and sponsor to attend social ceremonies, such as a wedding, together as spouses. 

35. The Tribunal is satisfied that the parties’ spousal relationship is recognised widely by family and friends and within their social circles.

    The nature of the persons’ commitment to each other

36. The parties have now been married for over 5 years.  The evidence submitted is consistent with a genuine and continuing spousal relationship.  At hearing the sponsor stated that he felt alone and was waiting to live with the applicants as a family so that his life would be enriched.

37. The Tribunal asked the applicant how she felt about the sponsor having previously identified as homosexual.  She responded that initially she had been shocked as according to their religion it was not acceptable.  Nonetheless, she prayed for the sponsor and came to the conclusion that rather than forsake him for his past, she should provide him with support to continue on his new path.   

38. The sponsor’s consistent travel to Ghana is also reflective of the sponsor’s commitment to the relationship.

39. The Tribunal has also taken into account that during the parties’ separation there is evidence of continual communication between them.  The Tribunal accepts that the communication between the parties is genuine and meaningful as the applicant was aware of the sponsor’s life in Australia in significant detail.  For example, the Tribunal asked questions she may not have anticipated such as the sponsor’s salary, his rental accommodation, and who his closest friend in Australia was.  The applicant was able to speak to the Tribunal spontaneously about these matters and the Tribunal did not have the impression that the responses were at all rehearsed.

40. The primary applicant’s son also gave evidence about his mother’s commitment to the sponsor and emphasised that the sponsor had contributed significantly to the family unit.

41. The Tribunal is satisfied that the evidence overall points to the parties providing one another companionship and support, particularly in the context of their religious institutions, and that they see their relationship as long-term and have a mutual commitment to one another to the exclusion of others.  The Tribunal is also satisfied that the parties are not living separately and apart on a permanent basis.

42. On the basis of the above persuasive evidence, 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.

    Conclusion

43. Therefore, the visa applicant meets cl.309.211 and cl.309.221.

44. 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

45. 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; and

    ·cl.309.221 of Schedule 2 to the Regulations.

    Rosa Gagliardi
    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).